Alternative Dispute Resolution

Question 1

What are the details of the small claims court (AO1)?

Answer 1

Claims up to 10K, Personal Injury £1.5K
Informal
Heard by a district judge
Less Legal argument, lawyers discouraged
2-3 hours max
Limited witnesses
Similar process to arbitration

Question 2

What are the details of the fast track (AO1)?

Answer 2

Claims between 10K and 25K
Timetable for disclosure of documents and witness statements
Trial date in 30 weeks
Simple procedure for speed
Limit expert witnesses
One day max in open court
Can have legal representation

Question 3

What are the details of the multi-track (AO1)?

Answer 3

Complicated claims over 25K or those over 100K
Over 100K will be heard in the High Court
Complex cases may have a case management conference
Trial dates can be deferred
Human rights issues, Asbestos lung disease, clinical negligence claims, abuse or neglect of children or vulnerable adults

Question 3

What are the details of the intermediate track (AO1)?

Answer 3

Claims between 25K and 100K
Monetary relief only
No longer than 3 days
No more than 2 expert witnesses per party
4 bands of complexity to assign cases to, to be quicker and cheaper
Simplified procedure
Stricter case management

Question 4

What are the details of the County Court (AO1)?

Answer 4

Try claims up to 100K
300 in England + Wales
Personal Injury up to 50K
Hear negligence claims
Other tort-based claims
Debt claims and consumer disputes
Housing claims - landlord + tenancy issues
Bankruptcy issues
Mainly heard by a circuit judge - if straight forward a district judge
Judge decides who is liable, if there is any compensation or remedy and who pays the costs

Question 5

What are the details of the High Court (AO1)?

Answer 5

Heard in open court by single High Court Judge
Split into 3 divisions: King’s Bench, Chancery, Family
Judge decides who is liable, if there is any compensation or remedy and who pays the costs
Normally for cases over 100K or over 50K if they are complicated

Question 6

What are the details of the King’s Bench Division (AO1)?

Answer 6

Largest division - hears wide range of cases
Will hear cases not suitable for County Court - Amber Heard, Johnny Depp case
Claims over 100K
Claims that have a complicated issue of law involved
Specialist Courts - Administrative Court - Application for judicial review, case stated appeals decided at Magistrates or Crown and Circuit Commercial Courts

Question 7

What are the details of the Chancery Division (AO1)?

Answer 7

Disputes relating to business, property or land over 100K
Disputes over trusts
Contentious probate claims
Disputes over partnership matters

Question 8

What are the details of the Family Division?

Answer 8

Often heard in private - sensitive
Welfare of children - made a ‘ward of the court’ - Children Act 1989
Appeals from lower courts and complicated family cases
Foreign element like international child abduction, forced marriage and FGM

Question 9

What are the advantages of the civil courts (AO3)?

Answer 9

Certainty
Legal Knowledge
Formality and History
Appeals
Enforcement

Question 10

What is the certainty advantage of the civil courts (AO3)?

Answer 10

Rules of evidence are clear, and procedures are formal, judicial precedent applies so many disputes can be resolved before reaching court as the outcomes are clear and cases are treated in a similar manner

Question 11

What is the Legal Knowledge advantage of the civil courts (AO3)?

Answer 11

Judge oversees - has knowledge and experience to deal with complex legal matters, can give reasoned decisions. Can allocate cases to the correct track in the courts

Question 12

What is the Formality and History advantage of the civil courts (AO3)?

Answer 12

This can promote respect for the law - open system of justice, allows the public to be aware of cases and industries that they should if they pose a problem. Allows for cases to be allocated early to the correct track

Question 13

What is the Appeals advantage of the civil courts (AO3)?

Answer 13

Grounds for appeal are clear

Question 14

What is the Enforcement advantage of the civil courts (AO3)?

Answer 14

Courts have greater powers to enforce their decisions

Question 15

What are the disadvantages of the civil courts (AO3)?

Answer 15

Costs
Delays
Unequal Bargaining Positions
Adversarial Process
Lack of Privacy
Precedent set - but no guarantee

Question 16

What is the Costs disadvantage of the civil courts (AO3)?

Answer 16

Costs can sometimes be more than the claim - Woolf found a claim for 2K with costs of 70K. Lawyer fees are expensive, and appeals add to the costs - can enter CFA to reduce costs but will need insurance

Question 17

What is the Delays disadvantage of the civil courts (AO3)?

Answer 17

55 Weeks in the small claims court and 76 weeks in the fast and multi-track cases which is too long and too expensive - witnesses may start to forget details

Question 18

What is the unequal bargaining positions disadvantage of the civil courts (AO3)?

Answer 18

Large companies against an individual are unfair as big firms tend to have legal teams - often emotional attachment and fear from the individual. Firms try to make an ‘out of court settlement’ for a lower value than the claim which is often accepted as it is quicker and avoids costs

Question 19

What is the adversarial process disadvantage of the civil courts (AO3)?

Answer 19

Cross examination by lawyers can be intimidating and aggressive as it encourages a battle between the 2 parties and is not best when future relations are needed like in divorce cases or commercial disputes - Many European countries don’t have this, France, so why should we

Question 20

What is the lack of privacy disadvantage of the civil courts (AO3)?

Answer 20

Courts are open to the public and press, sometimes disputes would be better solved in private like family matters

Question 21

What is the ‘precedent set - but no guarantee’ disadvantage of the civil courts (AO3)?

Answer 21

No guarantee of outcome until judge makes the decision and also room for appeals

Question 22

What are the 3 parts to the civil pre-trial procedure (AO1)?

Answer 22

Pre-action protocol
Issuing a claim
Defending a claim

Question 23

What is the pre-action protocol part to the civil pre-trial procedure (AO1)?

Answer 23

Explain the conduct and set out the steps the court would normally expect parties to take before court action
Want to resolve as many issues as possible before court
Base the decision of the court on what the compensation claim is - judge will assign this

Question 24

What is the issuing a claim part to the civil pre-trial procedure (AO1)?

Answer 24

Claim form N1: Completed with the names and addresses of the parties, brief details on the claim and money being claimed Claim can be filed at the County Court Office, High Court is high value, online for debt claim Fee charged dependant on the value of the claim

Question 25

What is the defending a claim part to the civil pre-trial procedure (AO1)?

Answer 25

The court will send or serve the claim to the defendant who can then: 1. Admit the claim and pay the full amount 2. Admit the claim and pay in instalments 3. Dispute the claim and file a defence as to why it should not be paid 4. File an acknowledge of service asking for more time to put together a defence

Question 26

What are the reforms of the civil justice system?

Answer 26

Movement to online system - Biggs review Integration of High and County Courts Inquisitorial System Reform of Compensation for Personal Injury

Question 27

What are the for and against points for: Movement to online system - Biggs review?

Answer 27

+: Cheaper, Quicker, less stressful -: Lack of justice, Lack of transparency as it is hard to find the judge online

Question 28

What is the point of integration of High and County Courts?

Answer 28

Avoids time wasting moving between courts Short term disruption but would lead to long term cost savings Labour Consultation Paper 2005 found this Unified court would allow cases to be based on complexity Solicitors and Consumer Organisations support Judges and Barristers oppose Sir Henry Brooke said they should not unify

Question 29

What is the point of an inquisitorial system?

Answer 29

It is less aggressive There would be less tactics It would be less of a battle format Judge will have a more investigative role Unlikely to fully move away from adversarial

Question 30

What is the point of reform of compensation for personal injury?

Answer 30

Include a no-fault system

Question 31

What are the details of online disputes?

Answer 31

Money Claim Online - set up in 2002 Debt recovery up to 100K - Rent arrears, unpaid fees etc Fees paid electronically Most cases undefended and claimants apply for online judgement Defence can use the online service to acknowledge service and lodge a defence If the case is undefended it reverts to normal old fashioned paper litigation Service available 24/7 - popular with creditors

Question 32

What are the 3 stages to online disputes?

Answer 32

1. Automated interactive process to identify issues and provide documentary evidence 2. Conciliation and case management by case officers 3. Judge resolution on screen Issue is these are civil servants not judges making these decisions. Phone and face-to-face meetings, case officers taking over a judge's role, not part of the independent judiciary. Not all people have the access to the technology Does it help the access or create more of a barrier?

Question 33

What are the AO1 points for negotiation?

Answer 33

Only form of ADR with no 3rd party Parties communicate directly to reach an agreement Can be face-to-face but often over the phone or emails May have solicitors No fixed procedure Needs compromise to be successful Often first type of ADR tried Neighbour disputes often solved through negotiation Large firms will use negotiation No costs unless lawyers involved

Question 34

What are the advantages of negotiation?

Answer 34

Speed - Often solved in minutes Cost - Cheapest form of ADR unless lawyers are involved Privacy - Conducted in private meaning relationships can be maintained Lack of Formality - Less formal than court, discussions can be held in a safe environment

Question 35

What are the disadvantages of negotiation?

Answer 35

Imbalance of power - One party may have less financial power which leads to bullying, large firms have their own legal teams constantly dealing with claims whereas inexperienced individuals will come up short Lack of legal expertise - If no lawyers there may be no legal knowledge at all which may result in future problems and disputes Enforceability - May not be clear as to whether the parties have entered a binding contract which is enforceable in court

Question 36

What are the AO1 points for mediation?

Answer 36

Neutral third party acts a go-between to help 2 disputing parties Often keep both parties separate - deliver offers and counteroffers, takes the heat out of the situations Mediator defines issues, but cannot offer solution - this must come from the parties Voluntary process, only legally binding if both sides agree Legal representation an option but discouraged A party would have to pay their own legal costs Relationships and divorce commonly use mediation The Family Law Act 1966 encourages couples separating to use this Relate has trained counsellors to do this but they are not always legally trained. Aim to create non-hostile future relations which cannot happen in court. Have 70 centers nationally and see 150,000 people a year