Civil courts

Question 1

What do civil cases concern?

Answer 1

Civil cases concern disputes between individuals, usually where an individual or business thinks that someone has infringed their legal rights in some way.

Question 2

What are the 2 courts civil cases can begin in?

Answer 2

County court
High court

Question 3

What does jurisdiction mean?

Answer 3

Jurisdiction means the power each court has to deal with certain types of cases

Question 4

What is the jurisdiction of the County Court and what types of judges hear those cases?

Answer 4

• Businesses trying to recover money they are owed
• Individuals seeking compensation for injuries
• Landowners seeking orders that will prevent trespass
• Hears a vast majority of civil cases

Heard by a Circuit Judge or a District Judge

Question 5

What are the appeal routes from the County courts?

Answer 5

 If the case was heard by a District Judge, then the appeal is to a Circuit Judge in the same County Court.

 If the case was heard by a Circuit Judge, then the appeal is to a High Court Judge.

Yes there is a possibility of a second appeal to the Court of Appeal ( criminal division.) These appeals require leave from the lower court or the Court of Appeal. Permission to appeal will only be given where:
 The court considers that the appeal would have a real prospect of success

 There is some other compelling reason why the appeal should be heard.
The Court of Appeal will allow an appeal where the decision of the lower court was wrong, or unjust
because of a serious procedural or other irregularity in the proceedings of the lower court.
The Court of
Appeal will have the powers of the lower court in relation to an appeal.

Question 6

What is the jurisdiction of the High court?

Answer 6

There are 3 chambers with the high court- Chancery division, King’s Bench Division, Family division.

• Chancery division
  Tax, property, wills and probate, and bankruptcy cases
• King’s Bench Division
  Hears Criminal appeals and judicial review cases
• Family Division
  Disputes under Hague Convention
  Adoption, divorce, wills and child custody
• Most Family cases now dealt with in a separate family court following Crime and Courts Acts

Question 7

Discuss the appeal routes from the high court

Answer 7

Appeals from the High Court usually go to the Court of Appeal (Civil Division). On rare occasions, there may be a “leapfrog” appeal direct to the Supreme Court. Such an appeal must involve an issue which is of national importance and the Supreme Court must give permission to appeal.

Question 8

Discuss the appeals from the Court of Appeal

Answer 8

Appeals from the Court of Appeal
From a decision of the Court of Appeal, there is a further appeal to the Supreme Court but only if the Supreme Court or Court of Appeal gives permission to do so.

Question 9

What are pre- action protocols?

Answer 9

Pre-action protocols are rules about what the parties must do even before Courts proceedings are issued.

• There are currently 16 separate pre action protocols and the one that applies will depend on the type of claim.

-Each category of case has its own set of Pre Action Protocols. Each category of case has its own protocol that has to be followed; for example, personal injury, clinical negligence, defamation etc.

Question 10

What has to be done for the pre action protocol?

Answer 10

1) Letter of claim- Sets out why D is at fault, nature of injury
2) D has 3 months to investigate and admit liability or explain to C why liability is denied
3) parties agree an expert witness if required

• If either party does not comply, they can be penalised when it comes to the issue of paying the costs at the conclusion of the claim

Question 11

What does issuing a claim involve?

Answer 11

If a dispute cannot be settled, the claimant can issue proceedings by completing form N1 and paying a fee which ranges between £25 for a very low value online claims to £100,000 for a claim for more than £200,000

Question 12

What happens once the claim has been issued?

Answer 12

The court will then allocate it to one of the 3 tracks. A track is the name for the different sets of rules that are applied to different types and values of claim.

Question 13

Discuss small track claims?

Answer 13

• Claims under £10,000; personal injury cases under £1,000
• Dealt in county court
• Hear by a district judge
  -Claimants are encouraged to represent themselves in order to keep the overall costs of the case down. The ‘winner’ cannot recover the cost of their solicitor, if using one, from the losing party.
  -Cases are most often heard in an informal setting with all parties and the judge asking inquisitorial questions and asking the parties to present their case themselves to get to the truth.
  -There are no strict rules of evidence, no cross-examination

Question 14

Discuss fast track claims?

Answer 14

• £10,000- £25,000; personal injury cases between £1,000- £25,000
• Heard in the county court
• Heard by a circuit judge
• The track establishes a strict timetable for pre-trial matters to ensure there is no time wasting and the aim is for the claim to be heard within 30 weeks of being received by the court.
• More formal setting and held in open court.

Question 15

Discuss multi track claims?

Answer 15

• This involves claims of more than £25,000.
• Up to £50,000 - County court
• Over £50,000- High court
• Since it involves the most money it will be likely to be heard by a more senior judge –
  either a Circuit Judge or a High Court judge.
• Clearly the most formal of the tracks and its procedure insists that the judge has a
  ‘hands-on’ approach to its case management.
• Timetables, gathering of evidence, control of expert witnesses are all in the hands of
  the judge to manage.
• Trial dates are set and strictly enforced with generally a 72-week maximum from allocation to trial permitted.

Question 16

What are the problems identified by Lord Woolf prior to the passing of the Civil
Procedure Rules 1998?

Answer 16

The present system of civil justice started in 1999 and is based on reforms recommended by Lord Woolf. He stated that a civil justice system should:
 Be just in the results that it delivers
 Be fair in the way it treats litigants
 Offer appropriate procedures at a reasonable cost
 Deal with cases at a reasonable speed
 Be understandable to those that use it.

Lord Woolf found that virtually none of these points were being achieved in the civil courts. The four major criticisms made by Lord Woolf of the old civil justice system were in relation to:
 Cost
 Delay
 Complexity
 Too adversarial

Question 17

What were the changes brought about by the Woolf Reforms?

Answer 17

• SIMPLIFICATION OF
  PROCEDURES

-JUDICIAL CASE
MANAGEMENT

• PRE ACTION PROTOCOLS
• ENCOURAGEMENT OF ADR

Question 18

What does it mean by simplification of procedures?

Answer 18

 Introduction of the three track system as set out above.

 Simplification of language – for example, plaintiff became claimant, writ became claim form and a minor became a child. This is because claimants are encouraged to bring their case without legal representation.

 Simpler Forms – the N1 claim form is now the standard form used for all claims and is easily accessible online. It also passed the Plain English Campaign for simplicity and accessibility for claimants not familiar with legal jargon.

Question 19

What does it mean by judicial case management?

Answer 19

(a) Active Case Management

Judges are now known as “case managers”, which means they adopt a much more “hands on” approach to the case and are responsible for much more than just deciding the outcome of the case, such as:
* Encouraging the parties to cooperate with each other;
* Identifying issues at an early stage;
* Encouraging the parties to use methods of alternative dispute resolution;
* Helping the parties to settle;
* Fixing timetables and controlling the progress of the case;
* Making use of technology.

This encourages a much more inquisitorial system and should make the system a lot less daunting and intimidating for claimants as well as reduce the need for legal representation.

(b) Limitations on Evidence
Expert evidence is being severely curtailed because they are expensive; often contribute to delay, and then end up agreeing at the court door. In most cases, the court will encourage a single joint expert which will act for both sides. This is set out in Part 35 Civil Procedure Rules.

(c) Encouragement to Settle
Where possible, the courts will encourage people to settle at any time before the case gets to court, because often the costs will outweigh the compensation. Part 36 Civil Procedure Rules offers are designed to settle disputes without going to court. Both sides can make a Part 36 offer and if accepted by the other side, the claimant is entitled to his costs up to that date. If they are refused and the refusing party is subsequently awarded less by the court, sanctions (penalties) can be made by the court against them. Thus,
any Part 36 offer must be considered carefully.

Question 20

What does it mean by pre action protocols?

Answer 20

The overall aim of these pre-action protocols is to get parties to settle out of court, thus reducing costs and delay. Each category of case has its own set of pre-action protocols; for example, personal injury, clinical negligence, defamation etc. Both clinical disputes and personal injury pre-action protocols recommend:
* Detailed letters of claim;
* Reply should be issued within 21 days of the date of posting;
* Within three months, both sides should organise full disclosure of key documents;
* Agreement on number of expert witnesses (Part 35 CPR);
* Use of alternative dispute resolution

Question 21

What does it mean by encouragement of ADR?

Answer 21

One of the ways that judges can actively manage cases fulfil their obligation under the Part 1 overriding objective is by encouraging parties to use ADR (negotiation, mediation, arbitration, conciliation and tribunals) when this is appropriate. Parties can postpone proceedings for one month to attempt to settle the case using ADR. Courts should also actively promote its use.

Question 22

Why is fair process an advanatge?

Answer 22

One advantage of the civil system is a fair process. Like cases are treated alike and heard by an impartial judge. The parties can also appeal if they are not happy with the judge’s decision. This means that the civil courts are procedurally just.

Question 23

Why is binding decisions an advantage?

Answer 23

Another advantage is that the decisions of the court are binding in law. If a party does not comply, the court’s decisions can be enforced by starting enforcement proceedings. This is not the case for most forms of ADR. The binding nature of courts proceedings encourage the parties to negotiate seriously and look to settle cases where possible.

Question 24

Why is the right to appeal an advantage?

Answer 24

Another advantage is that the parties have the right to appeal against the decisions of the court. This is an advantage compared to negotiation, mediation or conciliation where no appeal is available. However if the party that appeals is unsuccessful they are bound to comply with the court’s decisions.

Question 25

Why is cost a disadvantage?

Answer 25

One main disadvantage of civil courts is the cost. Often the costs of proceeding to trial are far greater than the amount being claimed. High court case can run into many thousands of points in cost. However the rule that the loser must pay the winner’s costs can be argued to encourage the early settlement of disputes.

Question 26

Why is slow an disadvantage of court proceedings?

Answer 26

Secondly the court proceedings can be very slow, with many procedural steps to go through before issues are resolved. However this position is improving- in 2016 the average time taken by fast and multi track cases to get to trial was just under 52 weeks which was three weeks quicker than 2015

Question 27

Why is uncertainty and disadvantage?

Answer 27

One disadvantage is that taking a case to court carries significant uncertainty with it. There is no guarantee of winning at trial, no matter how strong a case may look on paper. In addition, the fat that the loser pays the winner’s costs makes it difficult to know in advance the likely cost of a case.