CIVIL COURTS & ADR Flashcards
1
Q
Jurisdiction of county courts - how many?
A
- approx 200 county courts
- most in big towns/cities
2
Q
Jurisdiction of county courts - What kind of trials?
A
- lower value & more straightforward
- types of civil cases include - recovery of debts, property & tress pass disputes
- trials of all conduct & tort cases with a value of up to 100,000
3
Q
Jurisdiction of county courts - who hears?
A
- heard by a single judge (usually a circuit judge, district judges decide smalls claims cases)
- hears evidence & decides liability
- most family cases are now heard by the new family our set up in 2015
4
Q
Jurisdiction of the high courts - how many?
A
- one high courts in London
- but 26 braces in major towns & cities
5
Q
Justricition of high courts - who hears?
A
- hears more complex & higher value civil cases
- heard/decided by a single judge
- usually high court
- decides liability & remedy
6
Q
Jurisdiction of the high court - the 3 divisions?
A
- kings bench division
- chancery division
- family division
7
Q
Jurisdiction of the high courts - kings bench division
A
- trials of tort incudes deformation, personal injury & all judicial review cases
- eg - Miller v UK, cases about non payment of debts, recovery of land & property
- 2 specialist courts , The Admiralty court & The commercial court
8
Q
Jurisdiction of the high court - chancry division
A
- hears disputes about property, tax, bankruptcy, wills & probate
9
Q
Jurisdiction of the high courts - family division
A
- now only hears complex family cases that involve international law or abduction of children
- new family courts were created in 2015
10
Q
Pre-trial procedure - before court process?
A
- in civil cases, court should be a last option
- claimant has to try using negotiation or ADR
- claimant may try directly negotiating with the defendant though their solicitor/insurers
- may send a letter, but if it cannot be sorted then the claimant can start the court proceedings
11
Q
Pre-trial procedure - claim form (N1)
A
- claimants start the formal court process issuing the N1 form in either the county/high court
- form is sent to the defendant who has to 14 days to acknowledge and 28 days to file a defence
- if D does not respond the claimant can ask for judgement to be entered against them
- after defence is filed I is allocated the one of the tree case managment tracks
12
Q
The three case management tracks
A
- the claim form is served to the defendant who has 14 days to acknowledge recipient & a further 14 days to file a defence
- the courts sends a location questionaries to both parties & once these are returned they are allocated a track
- small claims track
- fast tack
- multi track
13
Q
Case management tracks - small claims
A
- personal injury cases under/up to 1000 & all other civil cases with a value of up o 10,000 are allocate to the small claims track
- an informal trial procedure will take place
14
Q
Case management tracks - fast track
A
- personal injury claims over 1000 & all other claims with a value of between 10,00 & 25,000 are allocated to the fast track
- case will be ready for trial within 30 weeks & will only last a day
15
Q
Case management tracks - multi-track
A
- claims with a value of over 25,000 are allocated to the multi-track & will be given a bespoke timetable to get the case ready for trial
16
Q
Civil appeals - county court process
A
- county court - appeal to next level of judge, from judge who heard the trial
17
Q
Civil appeals - small claims
A
- district judge hears & appeal to a circuit judge
- if heard by a circuit judge, appeal to high court judge
18
Q
Civil appeals - high court
A
- if heard by HC judge then appeal would go to the court of appeal civil division
- further right to appeal from the CA to the UKSC (if point of law of national importance)
- In some situations, the appeal from the high court judge could leap frog over the CA & go straight to the UKSC
19
Q
Advantages of civil courts
A
- its independent (single, idepedent judge)
- qualified person (unbaised, fair)
- fair - both sides heard/give evidence
- biding national of a court decision
- opportunities for appeal
20
Q
Disadvantages of civil courts
A
- cost (expensive)
- litigation risks (may have to pay winners legal cost + any compensation)
- time/delay (can be slow)
- adversarial (more of fight than discussion, bad for businesses)
- public (open to public, not good if wanting to keep dispute private)
21
Q
ADR - what is it?
A
- different way of resolving a CIVIL dispute
- mid 1990’s lord wolf suggest a reform to civil court process
- included greater use of ADR
- 4 types - arbitration, conciliation, mediation, negotiation
22
Q
ADR - process?
A
- less formal way of resolving disputes
- takes place away from the courts
- resolves disputes with an independent third party
- the parties choose the third party
- extent of third parties involvement depended on type of ADR
23
Q
ADR - funding?
A
- no gov funding for most types of ADR
- no costs are awarded - each party pays for own legal represtitve
- generally no rights of appeal (expect arbitration)
24
Q
ADR -result?
A
- private
- depends upon cooperation of parties
- not usually binding or enforcement
- parties usually represent themselves although they can use a lawyer
25
Arbitration - what is it?
- alternative way of resolving a civil dispute
- most formal ADR
- independent 3rd party - “arbitrator”
- must agree to arbitration, arbitrator can be a solicitor/barrister
- if they can’t agree on an arbitrator the association of arbitrators may suggest one
26
Arbitration - process?
- Parties can decide the time, date & place for the arbitration
- some is paper based
- some is face to face with both parties present, some are very formal, with the arbitrator hearing the evidence of both sides before making their decision
- decisions (award) is binding
- rights of appeal
27
Arbitration - funding/result?
- parties can represent themselves/use a lawyer
- each party pays for their own layers
- no government funding
- used for - employment disputes business disputes & holiday package tour disputes
- arbitration act 1996 - act of parliament containing rules on arbitration
- S69 - says arbitration can be appealed
28
Conciliation - what is it?
- type of ADR
- inquisitorial process (parties find a revolution rather than it being a win-loose situation)
- parties agree to go to conciliation
- conciliator is a neutral 3rd party (can be legally trained or an expert
- conciliator has less involvement than an arbitrator, but more than a mediator
- suggest, bur the parties themselves make a choice about how to resolve a dispute
29
Conciliation - process?
- parties decide a time, date & place
- depends upon both parties cooperating
- NOT binding & cannot be enforced by the courts
- parties usually represent themselves but hey can choose to use lawyers
- have to pay for lawyers them seleves
30
Conciliation - funding/cost?
- no gov funding
- often used to resolve employment or commerial/business disputes
- ACAS (arbitration, conciliation advisory service) provides conciliation for a fee
31
Mediation - what is it?
- type of ADR
- inquisitorial process of resolving civil disputes - more of a discussion than fight
- less formal than arbitration
- more formal than negation
- third party - mediator ( can be a trained lawyer/defirot/technical expert
- parties agree on mediator/time/date/place
32
Mediation - process?
- less involved than conciliator or arbitrator
- keeps parties talking but cannot suggest wats of resolving
- “mediates must meddle”
- depends on cooperation with parties
- not enforceable or binding
- no routes of appeal if a party is unhappy
33
Mediation - funding/represenitng?
- encouraged to represent themselves, but they can uses lawyers if the choose but they must pay for the lawyer themselves
- no government funding
- often used for family disputes
34
Negotiation
- type of ADR
- discussion & finding a way though rather than formal court process
-least formal but most common
- usually between parties or maybe legal represtitves
- doesn’t normally involve an independant 3rd party
35
Employment tribunals
- employment tribunals act 1996
- claims about people who think an employer has treated them unlawfully
- examples - unfair dismissal, discrimination, unfair deductions from pay
- heard by a panel made up of a chairperson (usually qualified lawyer) & 2 other panel members
- usually nor encourages to use lawyers if the & each party pays own costs
- binding & enforcable
- limited grounds to appeal
36
Advantages of empoyment tribunals
- less formal than courts
- binding & enforceable
- routes of appeals
- decisions made by an employment judge (qualified & independent)
37
Disadvantages of employment tribunal
- more formal than ADR
-court fees
- can seem to be inequality of bargaining as an employee is more likely to represent them selves and an employer is more likely to use lawyers
- nor public funding
- still rules & formality - may be off putting
- decision can be in the public domain/arena & they are reported as precedents
38
Advantages of ADR - COST
- much cheaper than civil courts
- encouraged not to use lawyers if the (can be thousands)
- no order for loser to pay winners fees
- no expensive court fees
39
Advantages of ADR - TIME & CONVINENCE
- not as much delay as civil courts (fast tack can take up to 30 weeks)
- generally quicker, keeping costs down
- minimises stress of parties
- can choose the time, date & place
40
Advantages of ADR - EXPERTISE
- independent party doesn’t have to be a lawyer or have legal qualifications
- can be specially trained to do ADR & expert in the area
- could lead to quicker & more relevant decision making
41
Advantages of ADR - PRIVACY
- private whereas civil courts are open to public
- good for maintaining personal & professional reputations
42
Advantages of ADR - lack of formality
- ADR doesn’t generally have complex, formal rules
- however are some formal rules about arbitration
43
Disadvantages of ADR - COST
- although cost is much lower than going to court
- cost of using commercial independent 3rd party can be expensive
- some people use a lawyer & have to pay
44
Disadvantages of ADR - TIME & CONVENIENCE
- still a delay
- sometimes long waits to use commercial ADR services like ACAS
45
Disadvantages of ADR - LACK OF EXPERTISE
- independent party may not have the expertise & skills a qualified judge has & the garundteed indepedence that come with the judge
- may not feel the process is as fair
46
Disadvantages of ADR - LACK OF CO-OPERATION
- parties are required to use ADR before getting public funding
- parties may feel forced into it
- ADR will only work if both parties are prepared if cooperate
47
Disadvantages of ADR - NON-BINDING
- only arbitration is biding
- others aren’t biding/enforceable meaning parties don’t have to follow in the future
- which can result in going to court
