civil courts Flashcards
which two civil courts hear trials
county and high
what two factors determine which court hears the trial
amount of damages being claimed and complexity
what can the county court try
all contract and tort claims for compensation
what are the 3 divisions of the high court
QBD, chancery and family
what does the QBD deal with
contract and tort cases where amount claimed is over £50,000
where are civik cases allocated to
one of three ‘tracks’
what does allocation of civil cases depend on
value and complexity of claim
small claims track
disputes under £10,000
personal injury under £1000
heard by district judge in county court
fast track
straightforward disputes of £10,000-£25,000
personal injury over £1000
heard by district/circuit judge in county court
multitrack
claims over £25000 or complex cases under this amount
heard in county court by circuit judge/ in high court by high court judge
what do appeals against liability and/or amount of damages from county court for claims under £25,000 depend on
the level of the judge who heard the trial
by who are appeals against liability and/or amount of damages from county court for claims under £25,000 heard by if the trial was heard by a district judge
circuit judge in same county court
by who are appeals against liability and/or amount of damages from county court for claims under £25,000 heard by if the trial was heard by a circuit judge
to a high court judge
is there a possibily of further appeal from trials heard initially in the county court for claims under £25,000
in exceptional cases
for which claim is the appeal route to the CA with a further chance of appeal to Supreme Court
claims over £25000 which have been dealt with as multitrack cases in county court
where will appeals against liability and/or amount of damages from the high court be heard
C/A and then Supreme Court
what do appeal courts have the power to do
affirm, set aside or vary any order or judgement of the lower court
can also order new trial
(brief) list 4 advantages of using civil courts
- fair process
- decision made by judge who is an expert
- outcome is certain
- appeal usually possible
why is using civil courts a fair process
advantages in more depth
judge is impartial and everyone is treated alike. if it is a public hearing justice is seen to be done
who makes the decision on liability in civil courts
advantages in more depth
after hearing all the evidence, the decision on liability is made by a judge who is a qualified and experienced lawyer
why is the outcome certain in civil courts?
advantages in more depth
can be enforced through courts in a number of different ways
possibility of appeal in civil courts?
advantages in more depth
usually possible to appeal against courts decision and there are set appeal routes
a part can also appeal about a tribunals decision and arbitration on a point of law. no appeal routes for other methods of resolving civil dispute
list 4 disadvantages of using civil courts
- expensive
- takes a long time
- very formal system
- difficult for an ordinary person to deal without help of a lawyer
why are costs of civil courts a problem
disadvantages in more depth
cost of taking a case to court often more than amount claimed
can cost 100s of 1000s of pounds in high court
why are claims for large amounts not settled for years
disadvantages in more depth
there are many preliminary stages to go through before the trial
eg. evans v lilconshire hospital trust: damages for over £5 million awarded for injuies during birth caused by medical negligence- child was 11 before it was settled
what is the issue with courts being formal
disadvantages in more depth
can be intimidating to some individuals
why is the civil court system difficult for an ordinary person to deal with without the help of a lawyer
(disadvantages in more depth)
set pre-action protocol must be followed in some cases before a case can start and parties must exchange certain information. there are various forms to complete during a case and further procdeures to follow as stated in CIVIL PROCEDURES RULES 1998
what does ADR stand for
alternative dispute resolution
what are the 4 methods of ADR
negotiation
mediation
conciliation
arbitration
how does negotiation operate
party directly communicates with the person theyre in dispute with in an attempt to settle the dispute
can be face to face or over phone/email etc
parties can continue communicating until resolution is made/fails
what are the possible outcomes of negotiation
dispute is resolves and the outcome can be enforced in court if parties formally agree
If negotiation fails, wronged party could sue in courts or use another method of ADR
Types of cases resolved by negotiation
All civil disputes
How does mediation operate
Neutral third party helps parties reach a compromise without imposing solution on them
Mediator passes messages back and forth between parties until they reach own agreement
Parties will choose exact method of mediation they want
More formal method can involve a mini trail where each side presents a case to a panel composed of a Rep of ech side and neutral mediator
Possible outcomes of mediation
Dispute is resolved and outcome can be enforced in court if parties formally agree
If mediation fails, wronged party could sue in the courts
What is CEDR
Centre for effective dispute resolution in London- family mediation association who offers mediation services for a range of family matters
How does conciliation operate
Neutral third party helps to resolve a dispute
Conciliation plays more active role than mediator- suggesting ground for compromise and best option for reading a settlement
Possible outcomes of conciliation
Dispute is resolved and outcome can be enforced through courts if parties formally agree
If conciliation fails, wronged party could sue in the courts
Types of cases solved by conciliation
Commercial cases between businesses
What is ACAS
Give impartial help and provide a conciliator in employment disputes
How does arbitration work
PArties agree to let a neutral third party make a binding decision
If there is a written agreement to use arbitration then parties usually have to use arbitrator rather than judge- such as a clause in contract (Scott v Avery clause)
Way in which arbitration operates left entirely to parties: may opt for paper arbitration/arbitration hearing with oral arguments and witnesses
Parties free to agree on no of arbitrators and on appointment procedure- arbitrator usually expert in subject involved in dispute
Possible outcomes of arbitration
Award is usually final and can be enforced in court
In limited circumstances award can be challenged in court on a point of law
Types of cases which use arbitration
Common for consumer contracts and increasingly popular in commercial cases
Advantages of negotiation
- completely private and least formal method
- quickest and cheapest if lawyers aren’t used
- most cases settled out of court
Disadvantages of negotiation
- outcome not certain
- lawyers may be used and the longer this lasts the more it costs
Advantages of mediation/conciliation
- cheaper, quicker and less formal than courts
- where business is involved, decisions based on commercial common sense than what law strictly requires- easier for parties to continue in business with each other
- avoid winner/loser outcome of a court case
- parties have control over resolution process and can stop at anytime
Disadvantages of mediation/conciliation
- no guarantee that matter will be resolved and may be necessary to go to court- cost and delays
- without skilled mediator/conciliator it can become a bullying exercise- weaker party not able to stand up to own rights
- amounts paid in settlements often lower than amounts awarded by courts to successful claimants
Advantages of arbitration
- dispute resolved more quickly than court hearing
- usually cheaper than court- expensive witnesses not needed to be called if arbitrator is an expert
- usually outcome is certain and award is final and can be enforced through courts
- parties have freedom to make own arbitration agreement and decide on formality themselves
Disadvantages of arbitration
- parties may not be on equal footing as regards to ability to present their case- legal aid not available and may disadvantage individual who can’t afford lawyer
- professional arbitrators come with expensive fees
- rights of appeal to courts limited
- delays for commercial arbitration nearly as great as those in court if professional arbitrator and lawyers used
List the advantages of using ADR
- cheaper than court
- quicker than court
- parties in control
- parties can go on doing business with each other
Why are methods of ADR cheaper than using courts
Advantages of ADR in more depth
Unlikely that parties will use a lawyer so it saves cost
Most expensive is arbitration where lawyers are sometimes used but this is still cheaper than a court case
Why are parties in control with most forms of ADR?
Advantages of ADR in more depth
Negotiation, mediation and conciliation- parties can choose to stop at any time
Agreement only reached if both sides accept it
Why are parties able to go on doing business with each other using ADR
(Advantages of ADR in depth)
Parties come to an agreement whereas court proceedings end with one party winning and one losing
Likely to make parties bitter about dispute
List disadvantages of using ADR
- courts have greater powers
- courts ensure fair process
- civil courts allow appeals
- legal aid more available for courts than ADR
Why do the courts have greater powers than ADR?
Disadvantages of ADR in depth
Only through the civil courts can a party effectively force the other side to resolve a dispute
Courts have greater powers to enforce their decisions
Why are civil courts more fair than ADR
Disadvantages of ADR in depth
Civil courts ensure fair process supervised by a judge who is a trained and qualified expert in law/legal procedure
Why is it a disadvantage of ADR that you can appeal from civil courts
Disadvantages of ADR in more depth
Limited rights of appeal with arbitration on a point of law but such appeals are rare
Why is legal aid not really available for ADR
DISADVATAGES OF ADR IN DEPTH
Availability of legal aid for civil cases greatly reduced in recent years
More widely available for court case than ADR
Who have tribunals been set up by
Parliament
Why have tribunals been set up
To operate alongside the court system so that people can enforce the rights from social and welfare legislation
Examples of types of tribunal cases include disputes over a persons right to:
- claim disability living allowance
- claim redundancy payments
What type of disputes do tribunals hear other than social and welfare legislation disagreements
Hear disputes where there has been professional misconduct e.g. Police and solicitors
Can the parties in tribunal cases go to court to resolve their dispute
No. The tribunal must be used instead
Which act created a first tier tribunal and upper tribunal
Tribunals, courts and enforcement act 2007
How many chambers does a first tier tribunal have
7
What do first tier tribunals hear
Relevant civil case
How many chambers does an upper tribunal have
4
What does an upper tribunal hear
Appeals
Who are first tier cases heard by
Tribunal judge and 2 lay members with relevant expertise in some cases
What must both sides be able to do in tribunals
Be able to put their case forward
Examples of more formal tribunals
Employment and asylum
How is formality ensured in some tribunals
Witnesses giving evidence on oath and being cross examined
Are all tribunals formal?
No some operate in a less formal way
What is the decision of the tribunal
Binding and enforceable through the courts
Will there be right to appeal from tribunals
Maybe based on legal reasons
Where do first tier tribunals appeal to
Upper tribunal
Where do upper tribunal appeals go
To court of appeal and finally to Supreme Court
List 4 advantages of tribunals
- cheaper than court
- short and usually dealt with in one day
- informal
- lay members usually experts in the type of case heard
Why do tribunal hearings not involve the costs associated with court hearings
Advantages of tribunals in depth
Applicants are encouraged to represent themselves and not use lawyers
Applicant need not fear a large bill if they lose the case
Why is it that tribunal hearings are short
Advantages of tribunals in depth
They were set up to prevent the overloading of the courts with the extra cases that social and welfare rights claims generate
Why are tribunal hearings more informal than court
Advantages of tribunals in depth
Parties encouraged to present their own case rather than use a lawyer and most cases heard in private
Why is the presence of lay members an advantage in tribunal hearings
Advantages of tribunals in depth
Two lay members sit to hear the case with the legally qualified tribunal judge
Lay members are experts in the type of case being heard- this gives them good knowledge and understanding of the issue in dispute
List 4 disadvantages of tribunal hearings
- legal aid not available
- delays
- more formal than ADR
- chair of tribunal may exert influence on other panel members
Why is lack of availability of legal aid a disadvantage of tribunals
Disadvantages of tribunals in depth
May put applicant at a disadvantage if other side uses a lawyer
Why can there be delays in tribunal hearings
Disadvantage of tribunals in depth
Large number of cases dealt with by tribunals
Use of lay members add to problem as they only sit part time
If a case is complex and lasts several days, this can lead to proceedings being spread over a number of weeks/months
Why are tribunals formal in comparison to ADR
Disadvantages of tribunals in depth
Place is unfamiliar and the procedure can be confusing for the individuals presenting their own case
