Civil Courts + ADR Flashcards
what does civil law include?
law of tort
contract law
family law
when may a civil claim arise? what may it involve?
if an individual or business believes their rights have been infringed in some way
may involved claiming compensation or getting an injunction
what are the main civil courts?
county court
high court
info on county court
found in most major towns
staffed by circuit and district judges
no jury except in cases involving defamation, malicious prosecution or false imprisonment
try nearly all civil cases including…..
• all contract and tort claims up to £100,000
• personal injury claims up to £50,000
• disputes over equitable matters up to £350,000
• divorce cases
• bankruptcy cases
basic info on high court
contains three divisions each dealing with certain types of cases; Queen’s Bench, Chancery and Family
Queen’s Bench Division in the HC
deals with biggest workload
contract and tort cases over £100,000
some complex multi track cases over £25,000 (transferred from county court)
criminal case appeals by way of case stated from the MC
applications for judicial review and habeus corpus
4 courts; commercial, technology and construction, admiralty, mercantile
Chancery Division in the HC
deals with business related matters….
- corporate disputes and personal insolvency
- business, trade and industry disputes
- mortgage enforcements
- intellectual property matters
Family Division in the HC
a single judge deals with family disputes such as….
- cases involving children (under the Children Act 1989 the court has the power to settle the residency of a child)
- wardship matters
- appeals from family proceedings courts
- cases from the county court
- non contentious probate cases
what should be attempted in civil cases?
civil cases should try to be settled through ADR without going to court
where do most claims start?
in the county court
pre trial procedures in civil cases
FIRST STAGE
claimant will complete the….
• MONEY CLAIM FORM for a fixed amount of money less than £100,000 and against no more than 2 defendants
OR
• N1 CLAIM FORM where C will gives brief details in the claim and it’s value, this will help decide the court and track
pays a court fee to issue claim which is then served on D
pre trial procedures in civil cases
SECOND STAGE
once the claim has been served, D can either…..
• ADMIT CLAIM - pays full amount and the case then ends
OR
• DEFEND CLAIM - disputes some of all of the amount claimed, must complete acknowledgement of service form within 14 days, can also make a counterclaim
pre trial procedure in civil cases
THIRD STAGE
if D defends the claim then….
- case allocated to a track and a court based on the amount being claimed
- parties also complete an allocation questionnaire
- case management hearings take place to check both parties are ready with evidence and keep to time limits
- court sets date for trial
- if trial is lost then C loses claim and is not awarded damages, if trial is won then damages are awarded to C and the costs will be payed by D
what is the track system?
all civil claims are allocated a track depending on the value of claim and complexity of case
the three tracks are small claims track, fast track and multi track
small claims track
for disputes under £10,000 and personal injury claims up to £1000
held in the county court usually in private
informal procedure where parties are likely to represent themselves
decisions are made by a district judge
fast track
straightforward disputes of between £10,000 and £25,000
held in the county court
more formal procedure where parties are more likely to be represented
decisions are made by a circuit judge
hearings are limited to a day and a restricted number of witnesses are allowed
multi track
disputes over £25,000 are held in the county court where decisions are made by a circuit judge
disputes over £100,000 involving complex points can go to the high court where a high court judge will make decisions
very formal procedure in which parties will be represented by experienced advocates
what do appeal routes depend on?
it’s possible to appeal against a decision made in a civil case
appeal routes depend on the court the case was held in, the value of the claim and the type of judge involved
what is the judge hierarchy?
district < circuit < high court
appeals from the county court
- SMALL CLAIMS + FAST TRACK CASES - appeals will be heard by the next judge up in the hierarchy from the judge that initially heard the case (e.g. if the case was dealt with by a district judge then the appeal will be heard by a circuit judge)
- FAST TRACK CASES - a second appeal can be made to the Court of Appeal (Civil Division) in exceptional cases only e.g. if there is an important point of principle or practise. no further route of appeal for fast track cases
- MULTI TRACK CASES - if heard in the county court then appeal goes to the court of appeal and then to the supreme court
appeals from the high court
- appeal goes to court of appeal, will involve a point of law and leave to appeal is required
- further appeal from CA to SC on a point of law of general public importance, permission is needed from SC
- possible leapfrog directly from high court to the supreme court if statutory interpretation or precedent is involved, permission for this is needed from the supreme court itself
- currently can still appeal to the CJEU (court of justice of the european union) if involving a point of EU law under article 267 of the TFEU
4 advantages of using civil courts (litigation) to resolve disputes
- fair
- expertise
- enforcement
- changes to civil procedure rules
4 disadvantages of using civil courts to resolve disputes
- expensive
- delays
- damages future relations
- judges are not technical experts
advantages of using civil courts to resolve disputes
FAIR
using civil courts is fair because judges must be impartial which means that everyone is treated the same way
judges control court proceedings which means that the case will be dealt with fairly
furthermore, the allocation questionnaire helps ensure that the case is allocated to the most suitable track
advantages of using civil courts to resolve disputes
EXPERTISE
judges make the decisions and they are legal experts with qualifications
those sitting in the county and high court have acquired legal expertise through years of experience regarding civil disputes, the law and the legal system
this means that if a point of law does arise then it can be solved quickly, for example if an issue regarding contract law arose
ensures consistency and efficiency as judges have seen many similar cases before and can deal with them quickly, which is important if complex legal issues are involved
advantages of using civil courts to resolve disputes
ENFORCEMENT
the outcome is legally binding which means that the award is enforceable through the courts
decisions made cannot be argued with unless a party chooses to appeal
this also provides certainty that a party will either win or lose a case, allowing them to prepare for either outcome and weigh the costs against the benefits of using a court
guarantees that the matter will be resolved because parties are not at liberty to walk away during court proceedings
advantages of using civil courts to resolve disputes
CHANGES TO CIVIL PROCEDURE RULES
the amendments made in 2013 to the civil procedure rules protect parties from excessive costs by ensuring costs are proportionate to the claim
legal aid is also available to those on low incomes and this can support them through their case, allowing more than just wealthy people to have their cases heard and addressed
in ADR, no legal aid is available
disadvantages of using civil courts to resolve disputes
EXPENSIVE
using civil courts is very expensive
the cost of going to court might be higher than the amount actually being claimed
bringing a claim to the high court can cost hundreds of thousands of pounds especially since lawyers are needed and the fees for legal professionals are very expensive (around £500 an hour)
furthermore, if a party loses then they may also have to pay the other sides costs
so unless a party is wealthy enough to afford to begin a case or able to obtain a no-win, no-fee agreement they would be unable to afford using civil courts
disadvantages of using civil courts to resolve disputes
DELAYS
using civil courts is a very long and time consuming process
the pre trial procedure involves a lot of steps eg claim forms, response from D, allocation, etc
there is usually a wait of a year before the case is even heard
adds to costs
ADR would be quicker and easier to use
disadvantages of using civil courts to resolve disputes
DAMAGES FUTURE RELATIONS
taking someone to court damages future relationships
court room is very adversarial and can cause conflict between parties, damaging any hope of maintaining a future relationship whether that is a business or social one
using a court straight away shows that a party is unwilling to try any other option to reach a compromise such as mediation and do not care for preserving future business or social relationships
it’s much easier and simpler to use a form of ADR to solve such matters
disadvantages of using civil courts to resolve disputes
JUDGES ARE NOT TECHNICAL EXPERTS
judges are not technical experts so will probably not have any specific expertise on the matter at hand
limited knowledge on the subject matter especially if the issue being disputed is be technical, obscure or requires expert knowledge
therefore, the judge might have to focus solely on the strict application of the law rather than having all the information needed to make an informed decision - this could result in an unfair outcome
advantages of the track system
- case management hearings have improved matters such as allocation, ensuring the cases are allocated to the most suitable track, adds to efficiency of process
- rate of settlement prior to case being heard has improved, reaching almost 80% in some areas
- fast track cases have seen reduced delays, this is because the time of trial is limited as well as the number of witnesses allowed, saves time and money
disadvantages of the track system
- costs have increased overall due to front loading of costs for all of the tracks
- lengthy process involved, fast track cases can take 48 weeks to get to trial and even small claims can take 29 weeks, multi track cases sometimes take years to reach court and be heard
- courts are under resourced, IT systems are primitive compared with private practice
advantages of small claims court
- increase from £5000 to £10,000 means people can use the small claims court to claim for larger amounts rather than having to use the fast track which is more formal and will costs more money as claimant will require lawyers
- does not require a lawyer, parties can represent themselves so do not need to pay large fees to a lawyer, makes it a lot cheaper especially since if they lose they do not have to pay the other persons legal costs
- simple procedure which is quicker, easier, cheaper and less formal than other courts, saves time and money for all involved. judges also tend to help both parties by explaining the case in detail
- greater emphasis on using it as a last resort, parties are often referred to mediation service first before proceeding to court and if this is successful then tine and money will be saved
disadvantages of using small claims court
- the increase from £5000 to £10,000 means higher and more complex claims will be made so more people will begin to use lawyers which puts those who cannot afford to hire legal professionals as at significant disadvantage, procedure also takes longer now that more complex claims are involved in the small claims courts
- PI claims and housing repair claims remain unchanged at £1000 which is a limited and low amount
- only around 60% of successful claimants actually revived all of the money awarded by the courts, there seems to be a lack of efficient enforcement, results in more people having to go through the Enforcement of Small Claims Judgments in the CC which only adds to workload
what are tribunals?
mini courts operating alongside the court system
enforce rights that have been granted through social and welfare legislation
informal, private and inquisitorial rather than adversarial
a legally qualified tribunal judge and other specific experts sit as a panel and reach an outcome which is enforceable
do not have the option to go to court
Tribunals, Courts and Enforcements Act 2007
regulates the tribunal system into a two tier structure
cases begin in the first tier tribunal
appeals go to the upper tier tribunal
first tier tribunal
deals with 300,000 cases a year
has 200 judges and 3600 lay members
7 chambers:
• general regulatory chamber - charities, environment, transport
• social entitlement chamber - social security, child support
• health, education and social care chamber - mental health, disability
• immigration and asylum chamber
• property chamber - land, housing
• tax chamber
• war pensions and armed forces compensation chamber
upper tier tribunal
deals with appeals from the first tier tribunal
4 chambers: • administrative appeals • tax and chancery • lands • immigration and asylum
employment tribunal and employment appeal tribunal operate separately from the first and upper tier but has the same status as the other chambers
appeal route for tribunals
- appeals go from the first tier to the upper tier
* further possible appeal to the court of appeal and then to the supreme court but only on a point of law
composition of tribunals
- FIRST TIER - cases are heard by a panel consisting of tribunal judge and usually 2 specialist lay members (e.g. a medical expert, surveyor)
- EMPLOYMENT TRIBUNAL - involves a person from an employers organisation and a person from an employees organisation
tribunal procedure
all chambers follow the same procedure
hearings are more flexible, informal and inquisitorial than the courts. usually held in private
both sides put their case forward
panel asks questions to gather information
legal aid is not usually available
some tribunals are more formal and will have witnesses give evidence under oath or be cross examined (may happen in the asylum tribunal for example)
x4 advantages of tribunals
- lower cost
- speed
- expert panel
- informal
x4 disadvantages of tribunals
- lack of funding
- delays
- more formal than ADR
- limited appeals
advantages of tribunals
LOWER COST
parties are encouraged to represent themselves which means there is almost no need for lawyers
lowers costs significantly as lawyers can be very expensive
furthermore, applicant need not fear a large bill if they lose the case as it’s rare for order of costs to be made
advantages of tribunals
SPEED
hearings are usually very short and can be dealt with within a day
saves the courts and parties a lot of time and money
takes workload pressure off of courts
advantages of tribunals
EXPERT PANEL
usually two experts sit with the judge
their vast knowledge and experience on issues of the case is every useful and provides expertise that judges may not have
results in a more informed and therefore fair outcome
advantages of tribunals
INFORMAL
hearings are informal and usually held in private which makes the whole procedure less intimating for all involved
inquisitorial rather than adversarial, reduces conflict
disadvantages of tribunals
LACK OF FUNDING
legal aid is usually not available
this may put one side at a disadvantage especially since the other side is usually an employer or government department that can afford to and do use lawyers
however, legal aid is available for cases involving fundamental human rights
disadvantages of tribunals
DELAYS
intention is to deal with cases quickly by the first tier tribunal deals with around 300,000 cases a year
which means there can be delays in getting a hearing
disadvantages of tribunals
MORE FORMAL THAN ADR
tribunals are unfamiliar and the procedure can be confusing for individuals presenting their own case
judges are supposed to held establish and explain the case but this does not always happen
disadvantages of tribunals
APPEALS
limited appeals that are only available on a point of law
there are also high costs of taking an appeal as lawyers are likely to be required
what is ADR?
other methods of resolving a dispute or reaching a settlement between parties without going to court
there are 4 main types of ADR; negotiation, mediation, conciliation and arbitration
why is ADR encouraged?
courts can be... • costly • time consuming • damaging to future relations • open to the public and the press
negotiation
parties reach an agreement themselves with no third party
can be face to face, over the telephone or via email
involved continued contact until a resolution is made or fails
successful outcome is an agreement that can be enforced if parties formally agree
advantages of negotiation
- parties represent themselves - no need for lawyers which makes it the cheapest method of dispute resolution
- preserves future business relationships - due to informal nature that encourages cooperation
- flexible - can be used at any point during the dispute including up to the court hearing, many methods of negotiation including face to face or via email
- can be enforceable - outcome can be made enforceable if both parties formally agree
disadvantages of negotiation
- may be unsuccessful which means parties may still have to use courts to resolve the issue which is very costly and time consuming
- outcome is usually not legally binding unless both parties formally agree
- not suitable for parties who are antagonistic towards each other and are unwilling to cooperate
- parties are responsible for this themselves and repeated unsuccessful attempts may just prolong the issue and waste time and money
mediation
a neutral third party (mediator) helps the parties reach a compromise solution
the mediator acts as a facilitator and does not offer an opinion unless asked, they take a passive role
often used relationship situations such as divorce
both parties have control over the resolution process and may withdraw at any time
they must reach an outcome themselves, a resolution cannot be imposed on them
Centre for Effective Dispute Resolution deals with disputes between companies while more local mediation services deal with disputes between neighbours such as noise or harassment
conciliation
neutral third party (conciliator) helps the parties reach a compromise solution
conciliator takes an active role by suggesting grounds for settlement
used in industrial disputes such as ACAS in employment law
parties have control over the resolution process and can withdraw at any time
a resolution cannot be imposed in them, they must both agree to it themselves
advantages of mediation and conciliation
- parties are in control of resolution process and can withdraw at any time if compromise is not possible
- decision can be based on commercial common sense rather than the strict application of the law, fairer and more convenient for both sides
- preserves future relationships both business and personal as it shows a willingness to cooperate
- avoids adversarial conflict of the court room which makes it less intimidating for both parties
disadvantages of mediation and conciliation
- no guarantee that the matter will be resolved, parties unwilling to reach a compromise may then have to go through the courts which adds to costs and delays
- relies on a skilled mediator or conciliator otherwise the whole process is ineffective and the weaker party will be forced to accept compromise
- amounts paid in mediated settlements are often lower than amounts agreed by other forms of ADR or awards from courts
arbitration
both parties voluntarily let and arbitrator or panel of arbitrators decide how to resolve their dispute
Arbitration Act 1996 governs agreements to arbitrate
agreement to arbitrate can be made before a dispute arises in a Scott v Avert clause in a contract - may state that if a dispute arises, both parties will arbitrate
arbitrators must be neutral third parties, an agreement will either name one or provide a method for choosing one or the courts may appoint one - Institute for Arbitrators provides trained arbitrators for major disputes
procedure for hearing including the date, time and place is agreed in by parties - hearings can be paper based or a formal court like hearing
awards and binding and can be enforced through the courts
the decision made is final and can only be challenged on the grounds of serious irregularity or a point of law
often used in building or holiday contracts
advantages of arbitration
- parties can choose their own arbitrators that can be technical experts, lawyers or professional arbitrators (whatever suits their case best) and if an expert then there is no need to call many expert witnesses as it’s covered by the arbitrator
- flexible - time, venue and procedure can be decided by the parties to suit their commitments
- privacy - not dealt with publicly which means the whole process is much less intimidating and can be resolved more quickly and therefore cheaply
- award is final and enforceable through the courts, guarantees a resolution to the dispute
disadvantages of arbitration
- an unexpected legal point may arise which is not suitable for an arbitrator that’s not a lawyer, they would be unable to make an informed decision which can add to costs and delays
- expensive especially for professional arbitrators and even more expensive if parties opt for a formal court like hearing where witnesses give evidence and lawyers represent both sides
- delays may be just as long as those in courts if lawyers and witnesses are used, ADR is not always quicker
- limited rights of appeal, award is final and can only be appealed on a point of law or serious irregularities, courts offer more appeal routes
what is ODR and how has it developed?
online dispute resolution
developments in technology have led to ODR services
what are some sources offering ODR?
EBAY - disputes arising from purchases
RESOLVER - helps consumers raise complaints with suppliers and retailers
FINANCIAL OMBUDSMAN SERVICE - disputes between consumers and financial service providers
EBAY
resolves 60 million disputes using ODR
offers services to deal with disputes arising from purchases and transactions; for example, non payments by buyers or complaints regarding items being delivered damaged
parties involved are first encouraged to resolve the matter themselves via online negotiation, ebay offers clear and structured advice on how to reach a resolution
if this is unsuccessful then ebay offers another resolution service called e-adjudication where parties enter a discussion area, present their arguments and then an ebay staff member determines a binding outcome under its Money Back Guarantee
RESOLVER
a free UK based online facility that helps consumers raise complaints with suppliers and retailers
contains email contacts for over 200,000 major organisations including loan companies, restaurants and high street shops
consumer is given online assistance in drafting a complaint, resolver offers form filling exercises and provides standard phrases to use
complaints are then emailed directly to the relevant organisation and that organisation is urged to respond to the resolver address so a case file can be built and maintained on the site
FINANCIAL OMBUDSMAN SERVICE
established by statute in 2000
a mandatory ADR body in the financial services sector that resolves disputes between consumers and UK based financial businesses
resolves around 500,000 disputes a year
consumer files a complaint and the complaint is then referred to the service
adjudicators (case handlers) attempt to facilitate a resolution to the dispute usually by contacting parties with their views in the most appropriate outcome
90% of the time both parties agree and dispute is resolved
if either party disagrees they can refer their case to an ombudsman for a final decision - this decision can be rejected by is binding if it is accepted
advantages of ODR
- simple and convenient, people can do it from the comfort of their own homes very quickly and easily, no need to use lawyers
- cheap, most sites are free to use and even when there is a charge it is likely to be a set amount known at the beginning which means there’s no hidden costs, also cheap as lawyers are not needed
- allows parties in different countries to communicate which means businesses can operate worldwide
disadvantages of ODR
- only suitable for some disputes, some issues such as those involved accidents require face to face evidence and contact that cannot be done online
- must accept decision otherwise they may still need to go to court which is time consuming and expensive
online courts: key dates
2016 - online courts proposed
2020 - hoped to be in operation
3 stages of online courts
1) interactive online process - identify issue and exchange documentary evidence
2) case manager - carries out conciliation and case management, tries to resolve the dispute
3) judge - if stage 2 is unsuccessful in resolving the case then a judge will do so, documents will be shown on screen and evidence will be given via video or telephone according to case needs
advantages of using online courts
affordable
accessible - can be used easily by non lawyers and is especially appropriate for the “internet generation”
quick and simple
consistent and trustworthy
fair and final
costs are proportionate to claim
disadvantages of using online courts
not always suitable - eg cases where it’s important to assess truth and reliability of evidence
reduces need for lawyers, losing many jobs in the profession
advantages of ADR over using courts to resolve disputes
cheaper - no court cost, reduction or complete removal of need for lawyers
quicker - resolves faster that court system
control - parties are in control of outcome as well as the date and venue for ADR, more flexible to suit both parties which results in a less formal process
expertise - parties can choose their own third party to help which could be a technical expert
privacy - not dealt with publicly, less intimidating for both parties
preserves future relations - avoids adversarial conflict of court room and encourages cooperation while avoiding negative feelings
