civil courts, adr and tribunals

Question 1

What types of cases are heard in the County Court?

Answer 1

Most types of civil law e.g. contract, land and tort.

Question 2

Who hears cases in the County Court?

Answer 2

A district judge or circuit judge although a jury of 8 can hear cases of defamation, false imprisonment or malicious prosecution.

Question 3

What types of cases are heard in the High Court?

Answer 3

Any civil case where the amount being claimed is high.

Question 4

What are the three divisions of the High Court?

Answer 4

-Queen’s Bench Division
-Chancery Division
-Family Division

Question 5

What types of cases can be heard in the Queen’s Bench Division?

Answer 5

Contract and tort cases where claims are over £100,000 or involve and important point of law.

Question 6

What does the special Administrative Court of the QBD do?

Answer 6

Carries out judicial reviews.

Question 7

Who hears cases in the QBD?

Answer 7

A single judge but there is a right to a jury of 12 for fraud causes or defamation, false imprisonment or malicious prosecution.

Question 8

What types of cases are heard in the Chancery Division?

Answer 8

Cases involving insolvency, mortgages, trusts and wills and intellectual property.

Question 9

What does the special Companies Court do?

Answer 9

It deals with dissolving companies.

Question 10

Who hears cases in the Chancery Division?

Answer 10

One judge.

Question 11

What court did the Crime and Courts Act 2013 create and which cases does it hear?

Answer 11

A Family Court which is separate from the Family Division and hears most cases of family law e.g. divorce, child custody, domestic abuse.

Question 12

What cases are heard by the Family Division of the High Court?

Answer 12

Cases of family law where there is an important point of law to consider or cases where international law or the Hague Convention may apply.

Question 13

Who hears cases in the Family Division?

Answer 13

One judge.

Question 14

What is a pre-action protocol?

Answer 14

A checklist of things each party must do before starting court proceedings. If either party fails to do these things, they may incur extra costs if the dispute goes to court. The exact steps of the protocol will be different depending on the type of law involved.

Question 15

When must C start the case in the County Court?

Answer 15

If the claim is for less than £100,000 (or under £50,000 for claims of personal injury). C can choose which court to go to if the claim is over these amounts.

Question 16

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

Answer 16

To any of the 200+ County Courts

Question 17

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

Answer 17

To one of the 20 district registries or the main High Court in London.

Question 18

How does C issue a claim?

Answer 18

C needs to 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.

Question 19

How much must C pay to issue a claim?

Answer 19

The fee varies depending on how much C is claiming but can go from £35 for claims up to £300 all the way up to £10,000 for claims over £200,000.

Question 20

How can D respond to the claim form?

Answer 20

By accepting liability and paying C the full amount asked for, or only accepting partial blame or denying all blame or even counter claiming.

Question 21

What must D do to dispute the claim?

Answer 21

Fill in an N9 form (an acknowledgment of service form) or submit a defence to the court within 14 days.

Question 22

What are the three tracks a case can be assigned to when D does not accept full liability and which courts hear these cases?

Answer 22

-Small claims track (County Court)
-Fast track (County Court)
-Multi track (Either the County Court or High Court)

Question 23

Who decides the track a case is assigned to and how do they decide?

Answer 23

A district judge will decide in the County Court or ‘The Master’ (a procedural judge) will decide in the High Court. The judge will look at the amount being claimed and the complexity of the case to determine which track to assign the case to.

Question 24

Which cases are allocated to the Small Claims track?

Answer 24

Property claims up to £10,000 or personal injury claims up to £1000

Question 25

Which cases are allocated to the Fast Track?

Answer 25

Property claims between £10,000 and £25,000 and personal injury claims between £1000 and £25,000.

Question 26

Which cases are allocated to the Multi Track?

Answer 26

The County Court hears property cases between £25,000 and £100,000 and personal injury cases between £25,000 and £50,000. Anything over these amounts is heard in the High Court.

Question 27

Where are appeals from the County Court heard?

Answer 27

If the case was initially heard by a district judge then the appeal is heard in the same County Court by a circuit judge. If the case was heard by a circuit judge, the appeal goes to the High Court.

Question 28

If a further appeal is made from cases initially heard in the County Courts where does it go?

Answer 28

The Court of Appeal. S55 of the Access to Justice Act 1999 says that this can only be done where the CoA considers that the appeal would raise an important point of principle or practice or if there is some compelling reason for the CoA to hear it.

Question 29

If a case was started in the High Court, which court will hear an appeal?

Answer 29

The Court of Appeal as long as there is leave to do so.

Question 30

Where do appeals from the CoA go?

Answer 30

To the Supreme Court if either the CoA or Supreme Court gives leave for this.

Question 31

What is a leapfrog appeal and when can it be made?

Answer 31

An appeal from the High Court goes straight to the Supreme Court, skipping the CoA. The Criminal Courts and Justice Act 2015 days this can only be done when the issue is of public or national importance importance or raises issues of sufficient importance to warrant a leapfrog.

Question 32

What are the advantages of using civil courts?

Answer 32

-Binding outcome
-Judge is a legal expert
-Legal aid is available
-Parties don’t need to cooperate

Question 33

What are the disadvantages of using civil courts?

Answer 33

-Expensive
-Lengthy and complex process
-Other alternatives can also involve experts
-ADR would focus more on compromise and future agreements than civil courts

Question 34

What is alternative dispute resolution and what are the 4 main types?

Answer 34

Methods of solving a legal dispute without going to court
-Negotiation
-Mediation
-Conciliation
-Arbitration

Question 35

How does negotiation work?

Answer 35

C and D have informal talks and try to 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.

Question 36

What are the advantages of negotiation?

Answer 36

-Can be done between just C and D without lawyers which makes it cheap
-Negotiations can start and be continued at any time
-Negotiated agreements can involve plans for future business, which the courts couldn’t order in a trial

Question 37

What are the disadvantages of negotiation?

Answer 37

-Negotiation is ineffective if the parties are hostile to each other
-Negotiations are not binding so the parties may break any agreement reached
-Failed negotiation will just draw out the process

Question 38

How does mediation work?

Answer 38

Like negotiations where a neutral party (the mediator) carries messages between C and D. The mediator is not meant to give their view or offer suggestions but may be asked for their evaluation on the merits of each side to end the dispute more quickly. The parties are still the ones who much come to an agreement though and this is still not binding.

Question 39

For which types of cases is mediation usually appropriate?

Answer 39

Often it is used between companies that are used to negotiating and this helps to maintain future cooperation. Mediation also must be used in a family dispute before court proceedings can take place (unless it involves domestic violence).

Question 40

What is the CEDR?

Answer 40

The Centre for Effective Dispute Resolution which is one of the largest services for helping businesses and companies with disputes.

Question 41

How effective is the CEDR?

Answer 41

In 2016 it handled 10,000 disputes involving a total of £10.5 billion in claims. CEDR estimated that this saved around £2.8 billion in management time, productivity and legal fees otherwise needed in court.

Question 42

What are some other types of professional mediation services?

Answer 42

Smaller mediation services like the West Sussex Mediation Service or Kent Family Mediation Service.

Question 43

How does conciliation work?

Answer 43

This is very similar to mediation except the mediator (or conciliator) takes a more active role by suggesting compromises. The suggestion of the conciliator is not binding and the parties can continue to court if a resolution can’t be agreed.

Question 44

What does ACAS do?

Answer 44

For business disputes, the Advisory Conciliation and Arbitration Service (ACAS) often give professional and impartial opinions on the legal position of the parties.

Question 45

What are the advantages of mediation and conciliation?

Answer 45

-Parties are in control of what happens- both must agree and can stop the process at any time
-A decision doesn’t have to be based on legal grounds and can be based on common sense or commercial ideas and allows for future business agreements
-Avoids the adversarial nature of trials and the winner/loser mentality- with mediation everybody wins
-Mediation works as the CEDR say 80% of cases it handled were settled and those that went to court were resolved more quickly than non-mediated cases due to the main issues being identified in mediation

Question 46

What are the disadvantages of mediation and conciliation?

Answer 46

-No guarantee a resolution will be reached and upheld, increasing the cost and time before even going to court
-Depends on 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 the courts would award

Question 47

How is arbitration defined in s1a of the Arbitration Act 1996?

Answer 47

The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense. S1b says that parties should be free to decide how the arbitration process works, unless this goes against the interests of justice.

Question 48

How do parties choose an arbitrator?

Answer 48

They can choose an arbitrator however they want although s15 of the Arbitration Act says there must be an odd number of arbitrators and the court will appoint one if the parties can’t agree.

Question 49

What role do the Institute of Arbitrators play?

Answer 49

They provide trained arbitrators with expert knowledge. If the dispute involves a point of law, a legally trained arbitrator is preferable.

Question 50

What are some different methods of arbitration?

Answer 50

-Oral arbitration where the parties call witnesses and give oral evidence.
-Written arbitration where the arguments and evidence are put into writing.
In theory it could be done in almost any way the parties want.

Question 51

What is important about the decision in arbitration?

Answer 51

It will be a written and legally binding decision.

Question 52

When can an appeal against an arbitration decision be made?

Answer 52

S68 of the Arbitration Act says appeals can only be made where there is a serious irregularity in the process or if a point of law was wrongly considered.

Question 53

What is a Scott and Avery clause?

Answer 53

A clause in a contract which states that the companies agree to solve any disputes they encounter via arbitration rather than going to court. This avoids the expense, time and hostility of going to court.

Question 54

What are the advantages of arbitration?

Answer 54

-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
-The case is dealt with privately instead of in open court
-Cheaper and quicker than a court case
-The decision is legally binding

Question 55

What are the disadvantages of arbitration?

Answer 55

-No legal aid for ADR means parties which can’t present a good case themselves are treated unfairly if they can’t afford lawyers
-If an unexpected point of law arises, an arbitrator without legal knowledge would be of little help
-Fees may still be expensive for professional arbitrators, especially if the parties want a formal hearing with witnesses
-The grounds for appeal are pretty limited
-Delays for arbitration can be as bad as that for courts

Question 56

What types of cases do employment tribunals handle?

Answer 56

Claims for unfair dismissal, redundancy, discrimination etc.

Question 57

What are the first steps involved in an employment tribunal?

Answer 57

A claim form is submitted and ACAS is contacted by the government to try and resolve the problem without going to a tribunal. Both parties are then given the opportunity to make their case to the panel.

Question 58

How do the parties present their case to the panel in a tribunal?

Answer 58

It will often be done formally, where witnesses will give evidence and be cross examined and the panel may ask questions as well. The trade union will often provide a lawyer for the employee and employers can usually afford their own lawyers.

Question 59

Who makes up the panel in a tribunal?

Answer 59

One employment judge, someone who represents employee organisations and someone who represents employers’ organisations. The decision they make is legally binding.

Question 60

When can an appeal from a tribunal be made?

Answer 60

If either party thinks a legal mistake was made or there was some unfair bias in favour of the other party. They must get permission from the Employment Appeal Tribunal to make this appeal and if successful, the EAT will hear the appeal.

Question 61

Where can a tribunal appeal go after the EAT?

Answer 61

To the CoA if permission is given by the EAT or CoA and it could even to go the Supreme Court from the CoA if necessary.

Question 62

What are the advantages of tribunals?

Answer 62

-Cheaper than court
-Panel consists of experts
-Less formal than court

Question 63

What are the disadvantages of tribunals?

Answer 63

-Very little legal aid
-Can be long delays
-More formal than ADR