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Law AS - Eduqas > 1.5 - Civil Courts > Flashcards

1.5 - Civil Courts Flashcards

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1
Q

The civil justice system is used to settle disputes between…

A

Private individuals or organisations (e.g. tort, family, contract)

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2
Q

Who is the claimant?

A

The person bringing the action (sometimes called the plaintiff in older clases)

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3
Q

Who is the defendant?

A

The person defending the action

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4
Q

What is the standard of proof for civil cases?

A

On the balance of probabilities

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5
Q

Is the burden of proof on the defendant or the claimant?

A

The claimant

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6
Q

What does it mean to say that the case must be proved ‘on the balance of probabilities’?

A

Is means that the court must be satisfied that ‘more likely than not’ the defendant is liable

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7
Q

What are the claimants seeking (by the end of the proceedings)?

A

They are seeking some form of remedy (e.g. payment of compensation from the defendant, or an injunction)
- This part of the case can be settled outside of court

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8
Q

What is an injunction?

A

An order by the court telling the defendant to discontinue his actions
(e.g. if the defendant was brought to court because his construction work was causing too much noise near the claimant’s land, the court might order the defendant to stop this work).

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9
Q

Draw the civil courts in order of hierarchy

A

See figure drawn in eduqas law revision guide page 50

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10
Q

Which two courts do civil cases start in?

A

The county court and high court are the two first instance civil courts

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11
Q

What 3 categories do civil cases now fall into and who introduced this change?

A

They now fall into:
- The small claims track
- The fast track
- The multi track

Lord Woolf introduced this change

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12
Q

What is the small claims track?

A

less complicated cases with a value up to £10,000 with some exceptions (e.g. £1000 for personal injury)

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13
Q

What is the ‘fast track’?

A

Cases between £10,000 and £25,000

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14
Q

What is the ‘multi-track’?

A

More complicated cases that are valued at £25,000 and above
- These cases can be tried in either the High Court or the county court.

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15
Q

What type of claims do county courts deal with?

A

They deal with:
- claims under contract and tort
- cases for the recovery of land
- disputes over partnerships, trusts and inheritance up to a value of £30,000

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16
Q

What type of claims do the High Court deal with?

A

They deal with all the claims that aren’t dealt with in the county court

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17
Q

Name the 3 divisions of the High Court

A
  • The King’s Bench Division
  • The Chancery Division
  • Family Division

These divisions have separate functions and differing jurisdictions.

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18
Q

Draw a diagram showing the appeals process

A
  1. Supreme Court (largely receives appeals from CoA except in leapfrog cases)
  2. CoA (hears appeals from High Court and county courts. Also sometimes hears appeals from tribunals)
  3. High Court hears appeals from the county court. King’s Bench division also sometimes hears appeal from (criminal) magistrates’ court and Crown Court, as well as conducting judicial reviews.
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19
Q

What do you call the head of the Court of Appeal division?

A

The Master of the Rolls

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20
Q

In what 2 circumstances ONLY will the Supreme Court consider taking on an appeal?

A
  1. If the case involves a point of law of general importance (e.g. the interpretation of a statute or a matter involving a binding precedent)
  2. If both the Supreme Court and the court that the appeal is coming from (most likely the CoA) give permission to appeal.
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21
Q

What are ‘leapfrog appeals’?

A

Appeals that go directly from the High Court to the Supreme Court.

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22
Q

Describe some features of the civil procedure BEFORE the Woolf reforms

A
  1. There were 2 separate sets of civil procedure rules
    - ‘White Book’ = for cases in High Court
    - ‘Green Book’ = for cases in county court.
  2. Different procedures for commencing a case
    - Cases in High Court started with a WRIT.
    - Cases in county court started with a SUMMONS.
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23
Q

What is the main problem with having separate civil procedure rules?

A

It could be confusing for the plaintiffs

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24
Q

What key 6 issues did Woolf note about the civil justice system in his report?

A

(ADECUE)

  1. Adversarial: There was an emphasis on exploiting the system, rather than the goal that should have been co-operation between parties
  2. Delays: took on average 3-5 years for cases to reach trial stage
  3. Expensive: litigation costs often exceeded amount in dispute
  4. Complex/confusing: Different procedure rules.
  5. Unjust: imbalance of power between wealthy parties and underrepresented party (pressure on less wealthy party to settle)
  6. Emphasis on oral evidence: This made trials slow and inefficient.
    - Evidence could have been pre-assessed pre-trial, saving time and money.
25
Q

What came into force as a result of the Woolf report?

A

Civil Procedure Rules 1988

26
Q

What was the main aim of the Woolf reforms?

A

To provide a common procedural code for the county and High Court, so the system is less complex/confusing.

27
Q

What were some of the main changes brought about by the Woolf reforms/Civil Procedure Rules 1988?

  • Also, state how these changes improved the system
A
  1. Pre-action protocols: parties encouraged to co-operate and exchange information as early as possible, reducing trial costs and delays.
  2. Case management: judges becoming managers of case, instead of parties.
    - judges can set timetables and sanction parties, improving efficiency and reducing costs.
  3. ADR: parties encouraged to settle using ADR (reducing costs).
  4. The three tracks (improving efficiency and reducing delays)
28
Q

Can the CoA force parties to ADR?

A

No
- in Halsey v Milton Keynes General NHS Trust (2004), the Court reaffirmed that parties can’t be forced to ADR as it might be against Article 6 European Convention on Human Rights (right to a fair trial).

29
Q

What are the sanctions that judges can pass?

A
  1. Adverse award of costs
  2. Order for case to be struck out (in part or in full)
30
Q

Using caselaw to support your answer, how strict/lenient should judges be when passing sanctions?

A

Not too strict:
- Biguzzi v Rank Leisure: Judges should only strike out a case if it is proportional. If there are other ways to deal with delay, they should resort to those first.

But also not too lenient:
- BUCB v Halifax: it was stressed that a lax approach should not be used for serious cases and courts should use the new sanction powers available to them.

31
Q

What is the role of a jury in civil cases?

A
  • To decide whether or not the claimant has proved their case ‘on the balance of probabilities’
  • To decide the amount of damages the defendant should pay the claimant (if they decide in favour of claimant)
32
Q

Are juries commonly used in civil cases? Why?

A

No, they’re rarely used in civil cases for 3 reasons:

  1. They tend to award excessive damages
  2. They don’t need to give reasons for their decisions.
  3. Excessive cost.
33
Q

What is ADR?

A

ADR is a method of resolving issues out of court.

34
Q

Why is litigation/court action not always the ideal method for resolving disputes?

A
  1. Adversarial nature of court proceedings (may result in deterioration of relations between parties).
  2. Delays in finding a resolution
  3. Intimidating and public nature of courts.
  4. complexity and cost of legal procedures.
  5. Cost of court action.
35
Q

Is ADR compulsory or encouraged?

A

ADR is encouraged where appropriate by the Civil Procedure Rules 1998 (it is part of the judge’s role in active case management.

36
Q

Is ADR used in civil cases or criminal cases?

A

ADR is only used in civil cases as there is too much at at stake to justify using it in criminal cases.

37
Q

Name the 4 types of ADR.

A
  1. Arbitration
  2. Mediation
  3. Conciliation
  4. Negotiation
38
Q

Describe/outline features of ‘arbitration’.

A
  1. Disputes resolved by neutral third party (arbitrator) who has the power to bind parties to his decision (decision is called the ‘award’).
  2. Parties agree to let third party bind them to his decision (many contracts now include pre-contractually agreed clause to this effect (Scott v Avery clause).
  3. Parties usually submit arguments in writing to arbitrator, as opposed to having hearings (but hearings still possible).
  4. Award can be appealed, ONLY on basis of serious irregularity in proceedings (or on a point of law) - s.65 Arbitration Act 1996.
39
Q

In which context is arbitration used in?

A

In commercial and context cases, and most notably in high-profile sports case.

40
Q

What are some advantages and disadvantages of ‘arbitration’ as an ADR?

A

Pros

  1. Parties have discretion over choice of arbitrator, and hearing procedure (e.g. venue, date, number of witnesses).
  2. Rarely any publicity.
  3. Award is binding and can be enforced by the courts.
  4. Arbitrator is an expert in the field.

Cons
1. Public funding not available, so one party may be at disadvantage.
2. Appeals restricted in arbitration process (only allowed in specific cases).
3. If legal point arises, there is not always a legal professional around.

41
Q

Describe/outline features of ‘mediation’’

A
  1. Parties encouraged to come to own settlement with help of neutral mediator, who acts as a go-between.
    - Mediator simply facilitates rather than actively decide outcome,
  2. Not automatically binding unless contract is drawn up.
  3. Individuals can find mediator via Civil Mediation Online Directory and there is usually a fixed dee.
42
Q

In what context is mediation used in?

A

Family disputes or any area area where a relationship needs to be maintained.

43
Q

What are some advantages and disadvantages of ‘Mediation’ as an ADR?

A

Pros

  1. Private and confidential process.
  2. Parties enter into mediation voluntarily (in theory).
  3. Quick, cost effective (if dispute is resolved then and there) and accessible.
  4. Good chance that parties can maintain a relationship.
    - CEDR reports 80% cases are settled at mediation.

Cons
- Dispute may still end up going to court anyway if mediation fails, resulting in greater costs
- Increasingly seen as a compulsory step in process (where parties are forced into mediation, there is a half-hearted commitment, decreasing chances of success).

44
Q

Describe/Outline a feature of ‘conciliation’

A

Third party plays a more actively role in proceedings to push towards settlement.

45
Q

In what context is conciliation used in?

A

Commonly used in industrial disputes (e.g. employment context).

46
Q

What are some advantages and disadvantages of ‘conciliation’ as an ADR?

A

Pros

  1. Cheaper than litigation.
  2. Private and confidential.
  3. Conciliator plays a more active role, which may be reassuring for the parties.

Cons

  1. Heavily relies on the skills of the conciliator so if the conciliator falls short, it will affect parties greatly.
  2. Dispute may go to court anyway if conciliation fails, resulting in even greater costs.
47
Q

Describe/outline features of ‘negotiation’ as an ADR.

A
  1. Dispute resolved between parties themselves but can involve solicitors.
  2. Can be completed using letters, email, phone, meeting etc.
  3. Ranges from situations where someone is returning faulty goods to a shop, to settlement offers being exchanged with the help of solicitors.
48
Q

In what context is negotiation used in?

A

Can be used in a wide range of contexts e.g. commercial, contract, industrial etc, and is actually used in most disputes at the outset.

49
Q

What are the advantages and disadvantages of ‘negotiation’ as an ADR?

A

Pros

  1. Completely private
  2. Quick resolution, maintaining relationships.
  3. Relatively informal method of resolution (more comfortable).

Cons

  1. Costly: Use of solicitors
  2. Offers are often exchanged and not agreed until the day of court, wasting time and money,
  3. People often see it as a halfway-house as they feel like they could’ve gotten much more if they initially went to court.
50
Q

What are tribunals?

A

Tribunals are specialist courts that handle disputes within specialised areas, mainly welfare and social rights.

51
Q

What is a difference that sets tribunals apart from ADR?

A

If a case fails at tribunal stage, there is no redress to the courts (albeit if there is an appeal from tribunals to the CoA, but this is very rare).

However, if any other form of ADR fails, the parties still have the option of going to court to resolve the dispute.

52
Q

What are the 3 different types of tribunal?

A
  1. Administrative
  2. Domestic
  3. Employment
53
Q

What do administrative tribunals deal with?

A

Disputes between individuals and the state concerning rights contained in social welfare legislation, e.g. disputes about land, immigration and social security.

54
Q

What do domestic tribunals deal with?

A

These are internal tribunals used to regulate disputes within private bodies, e.g. the Law Society, or the Football Association.

55
Q

What do employment tribunals deal with?

A

They deal with disputes between employees and employers over rights under employment legislation
- They are the most common use of tribunals.

56
Q

Briefly describe the history of Tribunals.

A
  1. When they were first introduced, there were more than 70 different tribunals, all with different procedures and administration.
  2. Even after setting up Council on Tribunals in 1958 to set supervise and review changes, no material difference was made.
  3. In 2000, Sir Leggatt suggests having one system/standardised procedure for tribunals (‘Tribunals for Users - One system, One service’)
  4. Many of his reforms were implemented in Tribunals, Courts and Enforcement Act 2007
57
Q

Describe the internal structure of tribunals.

A
  1. There are 2 tiers:
    - First-tier tribunal: where case is first heard
    - Upper tier tribunals: Where appeals of decisions made in first-tier are held.
  2. Within tiers, there are chambers that deal with similar areas e.g. asylum and immigration chamber and lands chamber.
  3. Each tribunal composed of 1 judge and sometimes 2 non-legal experts
    - Judges appointed by Judicial Appointments Commission
    - Experts are very knowledgeable about specific field (e.g. social care, housing)
  4. System headed by Senior President of Tribunals, responsible for assigning judges to chambers, looking after their general welfare, and helping with any issues.
    - also ensures procedures are unified throughout.
  5. Parties can represent themselves.
58
Q

Do all tribunals follow the same internal structure?

A

No, employment tribunals do not follow that two-tier structure

  • This is because the types of disputes dealt with in employment tribunals are very different from the others.
  • employment tribunals usually have 2 lay people, representing both employer and employee. This gives them a clear understanding of employment issues.
59
Q

What are advantages of tribunals?

A

Pros
1. Speed: judges take on case management duties, and impose strict timetables to ensure cases can be heard within a day.
2. Cost: No lawyers needed
3. Expertise: experts in relevant field means you won’t waste time explaining things to judge.
4. Informality: May be more comfortable for parties and help maintain relationship.
5. Unbiased/fair: judges picked by neutral independent Judicial Appointments Commission.
6. Lack of strict system of precedence: More flexibility.

Cons
1. Lack of funding: Legal funding not always available. (except in some cases, e.g. trade unions funding for you.
- mainly affects less wealthy individuals taking on bigger companies.
2. Delay: If a case is complex, there may be a delay in getting it heard.
3. Intimidated parties: May feel daunting to go against a party without legal representation, (especially if there’s tension between parties)
4. Lack of precedent: Unpredictable outcome.

Law AS - Eduqas (2 decks)

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