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Civil Courts, ADR and Tribunals Flashcards

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1
Q

What are the two civil courts of first instance ?

A
  • County

- High

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2
Q

Discuss the Country Court

A
  • Hears most types of civil cases
  • Heard by a district judge or circuit judge
  • A jury may be used instead of a judge in defamation, false imprisonment and malicious prosecution cases - This jury will only have 8 jurors.
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3
Q

What is the hierarchy of judges?

A

(From high to low)

  • High court judge
  • Circuit judge
  • District judge
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4
Q

Discuss the High Court

A
  • Hears all civil cases (cases will go to the High Court if the damages are high)
  • There are 3 divisions of the High Court:
    • QBD
    • Chancery
    • Family
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5
Q

-Discuss the QBD

A
  • Hears contract and tort cases where claims are over £100,000 or involve an important point of law
  • Cases are usually heard by a single High Court judge, but there can be a jury of 12 for fraud, defamation, false imprisonment and malicious prosecution cases.
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6
Q

What is the special court in the QBD and what does it do?

A

Administrative Court

-Carries out judicial reviews

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7
Q

Discuss the Chancery Division

A
  • Cases of insolvency, mortgages, trusts and wills and intellectual property can be heard in the division.
  • A High Court judge will always hear the cases
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8
Q

What is the special court in the Chancery division and what does it do?

A

Companies Court

-Deals with dissolving companies

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9
Q

Discuss the Family Division

A
  • Hears cases where there is an important point of law or any case dealing with international law.
  • Always heard by a single High Court judge
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10
Q

What is the special court in the Family Division and what does it do?

A

The Family Court

-Hears most cases of family law

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11
Q

Why is there a pre-trial procedure?

A

Courts want to avoid people going to trial.

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12
Q

What is a pre-action protocol?

A

A series of things the court want you to do. If either party fails to of these things, they may incur extra costs if the dispute goes to court. The exact steps of the protocol will differ depending on the type of law involved.

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13
Q

When must C start the case in the County Court?

A

If the claim is less than £100,000 (or under £50,000 for cases of personal injury)

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14
Q

When can C choose to go to the County or High Court?

A

Anything where claims are above £100,000 (or above £50,000 for cases of personal injury)

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15
Q

Where must C go to issue a claim in the County Court?

A

Any of the County Courts

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16
Q

Where must C go to issue a claim in the High Court?

A

Either 1 of the 20 district registries or the main High Court in London.

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17
Q

How does C issue a claim?

A
  • Fill in an N1 form or make a money claim online
  • The claim has to be filed at a court office and a fee will be charged for issuing the claim
  • The minimum fee is £35, with the maximum being £10,000, depending on the amount claimed.
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18
Q

How can D respond to the claim form?

A
  • Accept liability (Pay the full amount C asks for)
  • Accept partial liability (not wanting to pay the amount C asked for)
  • Deny liability
  • Countersue
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19
Q

What must D do if he wishes to dispute the claim?

A

Fill in an N9 form, or submit a defence to the court.

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20
Q

How long does D have to dispute the claim?

A

14 days, or they automatically accept full liability.

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21
Q

What happens when D does not accept full liability?

A

The case will be allocated to one of three tracks.

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22
Q

If the case was started in the County Court, who decides the track?

A

A district judge

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23
Q

If the case was started in the High Court, who decides the track?

A

The Master (a Procedural Judge)

24
Q

How is it decided which track is used?

A

By looking at the damages claimed and the complexity of the case.

25
Q

What is the Small Claims Track?

A
  • Involves cases where property claims are below £10,000 or personal injury claims are below £1000.
  • Usually heard in the County Court
  • Heard by a district judge.
  • Can be heard in private or in an actual court
  • Parties are encouraged to represent themselves and cannot claim back lawyer costs.
26
Q

What is the Fast Track?

A
  • Involves cases where property claims are between £10,000 and £25,000 or personal injury claims between £1000 and £25,000.
  • Usually heard in the Country Court
  • Heard by a circuit judge
  • Cases should be heard within 30 weeks (in reality is closer to 50)
  • Trial lasts one day, with the number of expert witnesses being limited to 1.
27
Q

What is the Multi Track?

A
  • Can go to Country or High Court
    • The County Court will hear cases where property claims are between £25,000 and £100,000 or personal injury claims between £25,000 and £50,000.
    • The High Court will hear cases where property claims are over £100,000 or personal injury claims are over £50,000
  • Heard by a judge
  • Judge should identify issues early on, encourage ADR, deal with procedural steps and set a timetable.
28
Q

What is meant by an appeal, and why would someone appeal?

A

A challenge to the decision, made when you thing the decision is wrong.

29
Q

Discuss appeals from the County Court

A
  • If the case was initially heard by a District judge in County, the appeal would be heard by a Circuit judge in the Country Court.
  • If the case was initially heard by a Circuit judge in County, the appeal would go to the High Court
  • If there is a second appeal, it will go to the Court of Appeal, not matter where the cases started.
  • S55 Access to Justice Act 1999 - No appeal can be made to the CoA unless the CoA considers that the appeal would raise an important point of principle or practice, or there is some compelling reason to hear it.
30
Q

Discuss appeals from the High Court

A
  • The appeal from the High Court will be heard in the CoA, as long as they have leave to appeal from the CoA.
  • A second appeal will go to the Supreme Court
  • An appeal can ‘leapfrog’ the CoA and go straight to the Supreme Court.
  • The Criminal and Justice Act 2015 said a ‘leapfrog’ can be made when the issue is of public/national importance or raises issues of sufficient importance to warrant a ‘leapfrog’.
31
Q

What are the As and Ds of using the Civil Courts?

A

As:

  • Binding Outcome
  • Judge is a legal expert
  • Legal aid is available
  • Parties do not have to cooperate

Ds:

  • Expensive
  • Length and complex process
  • Can’t make decision about future business
  • Adversarial nature of courts mean that one part must win/lose which may not be beneficial in some circumstances
32
Q

What is meant by Alternative Dispute Resolution (ADR)?

A

Methods of solving legal dispute without going to court

33
Q

What are the 4 main types of ADR?

A
  1. Negotiation
  2. Mediation
  3. Conciliation
  4. Arbitration
34
Q

Discuss Negotiation

A
  • When C and D have informal talks and try and come to an agreement.
  • Sometimes, the parties will have lawyers negotiate for them, and some negotiations may continue even once a trial has started.
  • An agreement made through negotiations is not binding.
35
Q

What are the As of Negotiation?

A
  • Can be done just between C and D (no lawyers) which keeps things cheap
  • Negotiations can start and be continued at any time
  • Negotiated agreements can involve plans for future business, which the courts could not order in a trial
36
Q

What are the Ds of Negotiation?

A
  • Negotiation will not be effective where the parties are hostile to each other
  • Negotiations are not binding so the parties may go break any agreement reached
  • Failed negotiation will just draw out the process
37
Q

Discuss Mediation

A
  • Like negotiations where a neutral party (the mediator) carries messages between C and D.
  • The mediator is not meant to give their opinion, but can share the pros and cons of the dispute.
  • The parties are still the ones who must come to an agreement though, and this is still not binding.
  • Large companies will use mediation to maintain co-operation.
  • Mediation MUST be used in a family dispute before court proceedings can take place (unless the issue is that of domestic violence).
38
Q

What are Mediation Services?

A

The Centre for Effective Dispute Resolution (CEDR) is one of the largest professional mediation services. They will help businesses with disputes. In 2016, they handled 10,000 disputes, saving £2.8 billion. 80% of cases dealt with through mediation will not go to court.

39
Q

Discuss Conciliation

A
  • Very similar to mediation, except the mediator (or conciliator) can suggest compromises and give advice.
  • Not binding

-ACAS provide professional and impartial opinions on the legal position of the parties.

40
Q

What are the As of Mediation and Conciliation?

A
  • Parties are in control of what happens – both must agree and can stop the process at any time.
  • A decision does not have to be based on legal grounds and can be based on common sense or commercial ideas + allows for future business agreements.
  • Avoids the adversarial nature of trials and the winner/loser mentality – with mediation, everybody wins.
  • Seemingly, mediation works as CEDR say 80% of cases It handled were settled, and those that went to court were resolved quicker than non-mediated cases due to the main issues being identified in mediation.
41
Q

What are the Ds of Mediation and Conciliation?

A
  • No guarantee a resolution will be reached and upheld - increasing cost and time before even going to court.
  • Mediation/conciliation also depends on a good mediators, otherwise it can end up with one party bullying the other and forcing them into a settlement.
  • The amount agreed on in these services is often much lower than courts would award.
42
Q

Where is Arbitration defined and what is the definition?

A

S1A of the Arbitration Act 1996 said ‘the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense’.
S1B - parties should be free to decide how the arbitration process works, unless this goes against the interests of justice.

43
Q

Put simply, what is Arbitration?

A

When an arbitrator hears the parties’ cases however

they chose, and then makes a binding decision on it.

44
Q

Discuss choosing an arbitrator

A

S15 Arbitration Act - Must be an odd number of arbitrators an the court will appoint one if the parties cannot agree.
The process of choosing an arbitrator is up to the parties.

45
Q

Discuss the method of arbitration

A
  • S1B - Parties are free to carry out the arbitration (almost) however they want.
  • Oral arbitrations involve witnesses to give oral evidence.
  • Paper arbitration is where arguments and evidence is written.
46
Q

Discuss the arbitration decision

A
  • An arbitrator will make a legally binding decision that must be in writing.
  • S68 Arbitration Act says there is a right to appeal only if there is a serious irregularity in the process, or if a point of law was wrongly considered.
47
Q

What are Scott and Avery Clauses?

A

A clause in a contract which states companies agree to solve disputes via arbitration.

48
Q

What are the As of Arbitration?

A
  • The parties have a lot of control over how the case is handled
  • Expert arbitrators can be involved to make informed decisions, rather than having to pay an expert witness to explain things to a judge
  • Cheaper and quicker than a court case
  • The decision is legally enforceable
49
Q

What are the Ds of Arbitration?

A
  • No legal aid for ADR means parties may not be fairly represented, especially if the case involves a firm and an individual.
  • If an unexpected point of law comes up, an arbitrator without legal knowledge would be of little help.
  • The grounds for appeal are pretty limited
  • Can still have bad delays and be expensive (due to high costs of professional arbitrators).
50
Q

What are Tribunals?

A

An important part of the civil legal system are tribunals, which are like less formal courts for important social and welfare issues.

51
Q

What is the Employment Tribunal?

A

A special tribunal that hears claims for unfair dismissal, redundancy, discrimination etc.

52
Q

What is the Tribunal Procedure?

A
  • Submit a claim form
  • ACAS contacted by the Government to try and resolve the problem without going to a tribunal.
  • Both parties give their case to the ‘panel’
  • This is done formally, where witnesses give evidence and are examined.
  • The trade union will often provide a lawyer for the employee.
  • The panel is usually made up of one employment judge, someone who represents employee organisations, and someone who represents employer’s organisations.
  • The decision is legally binding.
53
Q

Discuss Appeals from Tribunals

A
  • An appeal can be made if a legal mistake was made or there was an unfair bias.
  • Appeals from the Employment Tribunal will got to the CoA.
  • A second appeal will go to the Supreme Court.
54
Q

What are the As of Tribunals?

A
  • Cheap –usually no lawyers or fees/costs to pay
  • Informal – not heard in court and the case is usually -presented without lawyers
  • Quick- tribunals often only last one day
  • Expertise – 2 experts often help make the decision
55
Q

What are the Ds of Tribunals?

A
  • Usually there is no legal funding, which means that if only one side can afford a lawyer, there is an uneven playing field.
  • More formal than ADR due to it being an inquisitional hearing with a binding decision.
  • Delays can still be had due to the large number of tribunals being heard and the fact that some lay members only on tribunals part time.

Law (43 decks)

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