Civil Courts and ADR

Question 1

How many county courts are there and how many do the government plan on closing?

Answer 1

There are about 200 county courts in England and Wales and the government plan on closing about 50 of them.

Question 2

What are the main areas of jurisdiction for county courts?

Answer 2

All contract and tort claims, all cases for the recovery of land, disputes over equitable matters such as trusts up to a value of £350’000, inheritance of up to £30’000, divorce and bankruptcy cases, small cases, fast track cases and some multi track cases.

Question 3

What governs the procedure of County Courts?

Answer 3

County Courts Act 1984.

Question 4

Who presides over cases in County Courts?

Answer 4

Trials are presided over by circuit judges (for more serious cases), recorders (part time judges) and district judges.

Question 5

Where are cases held?

Answer 5

Within their local jurisdiction which could be where the defendant lives or where the company is based.

Question 6

Where is the high court based and what are the three branches?

Answer 6

it is based in London but can sit in other major cities for example Birmingham effectively has a permanent high court in session.

1) King’s bench.
2) The Chancery division.
3) The Family division.

Question 7

What cases does the King’s Bench Division deal with?

Answer 7

It is the biggest of the three divisions, it deals with contract and tort cases where the amount claimed is over £100’000 though it can hear smaller claims when there is an important point of law.

Question 8

What smaller things does the King’s Bench Division also deal with?

Answer 8

Personal injury, negligence, breach of contract, defamation, non payment of a debt and possession of land or property.

Question 9

What branches does the King’s Bench split into?

Answer 9

Commercial Court, Admiralty Court, Circuit Commercial Court and the Technology and Construction Court.

Question 10

What does the Administrative Court in the King’s Bench Division do?

Answer 10

This supervises the lawfulness of the conduct of National and Local Government, or inferior courts and tribunals, and any other public bodies through judicial review.

Question 11

What does the Chancery division do?

Answer 11

Insolvency for both companies and individuals, the enforcement of mortgages, disputes relating to trust property, copyrights and patents, Intellectual property matters and contested probate matters.

Question 12

What is the special branch of the Chancery and what does it do?

Answer 12

There is a special companies court which mainly deals with winding up companies.

Question 13

What Cases do the family Courts deal with?

Answer 13

They deal with family law relating to the Children Act 1989, Child abduction and custody act 1985 and Court of protection work.

Question 14

When does the family court deal with international Law?

Answer 14

When there is a dispute over which country’s law should apply and all international cases involving family law under the Hague Convention.

Question 15

What was introduced in 2013 to supplement the Family division?

Answer 15

The Crime and Courts Act 2013 created a New Separate Family Court which now deals with a majority of family issues.

Question 16

What did Lord Woolf say about civil courts in 1999?

Answer 16

He stated that the civil justice system wasn’t achieving its aims of being fair just and reasonable in its costs.

Question 17

What did the Civil procedure rules set out in 1999 do?

Answer 17

It introduced the three track system, offered judges more responsibility to manage cases, simplified the system and placed a greater emphasis on ADR.

Question 18

What are the three tracks of the civil court?

Answer 18

Smalls claims track, Fast track, Multi Track.

Question 19

What types of cases are classed as Small Claims?

Answer 19

Any claim of £10’000 or less or up to £1’000 for injury and landlord/tenant cases.

Question 20

Where are Small Claim cases heard and who are they heard by?

Answer 20

They are held in a County Court by a district judge and can be heard by a Circuit Judge.

Question 21

How do proceedings work with small claims cases?

Answer 21

There are very strict time limits place and only a limited number of witnesses are allowed, parties do not require legal representation.

Question 22

What cases are classed as Fast track claims?

Answer 22

Cases that are between £10’000 to £25’000 as well as over £1’000 for injury claims and Landlord/Tenant cases.

Question 23

Where are Fast track cases heard and who are they heard by?

Answer 23

They are held in county courts and are heard by either District Judges or Circuit Judges.

Question 24

How do proceedings work with with Fast Track cases?

Answer 24

They have a strict trial time limit of 1 day and a limited number of witnesses and a case is usually heard within 30 days of allocation.

Question 25

What cases are classed as Multi Track Claims?

Answer 25

They are usually cases involving £25’000 or more but they can be less if it involves complex areas of law.

Question 26

Where does are multi track claim usually start and what circumstance can change this?

Answer 26

Usually start in a county court before a circuit judge but can be sent to the High Court if it’s worth over £50’000 and complex areas of law are covered, such as specialist areas.

Question 27

How do proceedings work in multi - track cases?

Answer 27

A judge will actively manage a case and set a strict time table including what must be disclosed, how many witnesses will be used and the trial time.

Question 28

What are the Advantages of using Civil Courts? AO3?

Answer 28

The process is fair in that everyone is treated alike - Judge is impartial, is a qualified lawyer.

Enforcement of the Court’s decision is easier - Can be enforced by courts, judges use precedent and decision is binding.

Parties are not allowed to walk away during the case - People can walk away if ADR costs too much, it is also public not private.

There is an appeal process with specific appeal routes - From decisions made in the court, so claimant can appeal if they are unhappy with results.

It may be possible to receive legal aid - This is not possible for ADR.

The Judge will have control over proceedings - Allocation questioner ensures that case is in correct track. There is a strict case timetable for the length of the hearing and number of witnesses which manages delay.

Question 29

What are the disadvantages of using Civil Courts AO3?

Answer 29

Cost - The cost of taking a case to court is often more than amount claimed, in the High Court can cost hundreds of thousands of pounds.

Adversarial and Daunting - Winner and loser means no compromise, personal/business relationships can be destroyed, can be intimidating due to formal nature.

Delay - Many preliminary stages add to length, once set down for hearing it can be up to a year to be heard for larger cases. Some cases not finished for years.

Complicated process - Compulsory steps must be taken before a case starts, in some cases pre action protocol must be followed and certain information must be given to the other party. Difficult for ordinary people to understand without help.

Uncertainty - There is no guarantee of winning a case, the person losing a case may have to pay the other sides costs.

Question 30

How does the court appeal of work?

Answer 30

The unsuccessful party can appeal the decision to a higher court, but appeal must be obtained from the trial judge, most appeals relate to legal issues not facts of the case.

Question 31

What happens if the appeal is successful and give an example of this?

Answer 31

The decision can be overturned or damages reduced.

Sutcliffe v Pressdram - The wife of the Yorkshire ripper was awarded £600’000 in damages upon appeal it was reduced by 90% to just £90k after the magazine appealed.

Question 32

Why and when were tribunals created?

Answer 32

They were created by the Industrial training Act 1964 but are now mostly governed by primary legislation (Employment tribunals act 1996) and secondary legislation (The employment tribunals regulations 2013.

Question 33

What happens prior to a tribunal taking place?

Answer 33

Early conciliation and ACAS (Advisory, conciliation and Arbitration Service) take effect and talk to both claimant and the defendant about the dispute to give them chance to reach an agreement without tribunal, if it doesn’t succeed then a claim is issued.

Question 34

What types of claims to tribunals deal with?

Answer 34

Tribunals are very specialist in nature. Disagreements in employment relationships including unfair, wrongful and constructive dismissal.
Sex, race, disability, age, pregnancy and maternity, marriage and civil partnership, religion or belief and sexual orientation discrimination.
Whistle blowing, victimization and breach of contract.

Question 35

How does the procedure work in tribunals?

Answer 35

There are three members of a tribunal who will decide your case, they are called the tribunal panel/ There is an employment judge who will run proceedings, a person representing employers organizations and a person representing employees organizations. They are slightly less formal than a court.

Question 36

What are the fees, costs and penalties associated with tribunals?

Answer 36

Each party pays it’s own costs, even if you win the other party will not have to pay your costs, funding is often provided by a trade union for employees, decision by tribunal is binding.

Question 37

What is the Employment Appeal Tribunal and how do you access further appeal?

Answer 37

You can appeal to the Employment Appeal Tribunal if you think there was a legal mistake. For example got the law wrong, did not apply the correct law, unfairly biased towards the other party.

Question 38

What are the advantages of tribunals?

Answer 38

Specialism, ACAS, Confidentiality, Informality of hearings, lawyers not needed, written judgement, costs, limited appeals.

Question 39

What are the disadvantages of Tribunals?

Answer 39

Speed of issuing a claim, funding unavailable, more formal than other methods of ADR, Appeals are limited, Delays in setting hearing dates.

Question 40

What is negotiation?

Answer 40

Negotiation is where two parties resolve their dispute without referring to a third party for assistance or submitting to alternative adjudication.

Question 41

In what ways can negotiation be informal?

Answer 41

Two individuals resolving a dispute face to face such as a consumer dispute when returning goods and getting a refund.

Question 42

In what ways can negotiation be formal?

Answer 42

Asking for qualified negotiators (sometimes solicitors) to act on behalf of the parties such as negotiating a trade deal or company acquisitions and mergers.

Question 43

What are the advantages of Negotiation?

Answer 43

• It can be conducted by the parties themselves, there is no need for the use of lawyers.
• Negotiation cab be used at any point in the dispute from the beginning right up until the court hearing.
• It is the cheapest method of resolving a dispute particularly when the parties do it themselves.
• A negotiated resolution can include agreement about future business deals. This can also be done with conciliation and mediation but cannot be done with a court decision.

Question 44

What are the disadvantages of negotiation?

Answer 44

• it may not be successful, so that other ADR or court proceedings can be used.
• It is not suitable where the parties are very antagonistic towards each other as they will not be prepared to co-operate when finding a resolution.
• If there are repeated unsuccessful attempts at negotiation, it may prolong the issue.

Question 45

How does mediation work?

Answer 45

This is where a neutral mediator helps reach a comprise solution, the mediator will consult each party and see how much common ground is between them.

Question 46

How does the process of mediation work?

Answer 46

The mediator will work to find any common ground, he will explore the position of each party , looking at their needs and carrying offers two and fro whilst, keeping confidentiality.

Question 47

How does the mediator operate as a facilitator?

Answer 47

A mediator will not usually tell his own views to the parties of the merits of the dispute so that an agreement is reached by the parties. However, a mediator can be asked for an opinion.

Question 48

What is the main difference between conciliation and mediation?

Answer 48

It has a neutral third party that helps resolve the dispute however, the difference is that the conciliator will play a more active role.

Question 49

How does the process of conciliation work?

Answer 49

Discusses issues with both parties in order to develop a better understanding of each parties position whilst also suggesting possible grounds for compromise and in turn grounds for settlement.

Question 50

What can a conciliator not do?

Answer 50

They are not able to seek evidence or call witnesses.

Question 51

How does conciliation work in industrial disputes?

Answer 51

In industrial disputes the Advisory Conciliation and Arbitration Service (ACAS) can give an impartial opinion on the legal position, it is not legally binding.

Question 52

What are the advantages of Mediation and Conciliation?

Answer 52

• Parties can withdraw at any point and compromise cannot be reached unless both parties agree.
• The decision need not be a legal one sticking to the letter of the law.
• Makes it easy for companies to do business in the future, as it may include future arrangements. Court not interest in present dispute.
• Avoid adversarial conflict in the court room and the winner/loser results of the court room.
• High number of cases seen, over 80% of cases are settled and if it does fail parties are still less likely to go court.

Question 53

What are the disadvantages of Mediation and Conciliation?

Answer 53

• No guarantee that the matter will be resolved and therefore, court will be necessary which can add additional costs and delay.
• They require a skilled mediator with natural talent, honed skills and accumulated experience. If not may become a bullying exercise although this is more likely in conciliation.
• Amounts paid in mediated settlements are often lower than in other agreed settlements and considerably lower than the amounts awarded in court.

Question 54

What is Arbitration?

Answer 54

Parties agree to submit their claims to private arbitration, it is another way of resolving a dispute without the need for a court case.

Question 55

What governs Arbitration?

Answer 55

It is governed by the Arbitration Act 1996 and is S1 of that act.

Question 56

What is the objective of arbitration?

Answer 56

They aim to receive fair resolution of disputes by an impartial tribunal without unnecessary delay or expense. The parties should be in agreement to how their dispute will be solved, subject to safeguards.

Question 57

How does the process of Arbitration work?

Answer 57

It is a voluntary submission by both parties, of their dispute, for some person other than a judge. Such results will usually be in writing.

Question 58

What is the agreement to arbitrate?

Answer 58

The agreement to go to arbitration can be made by parties at any time. Many contracts include a Scott v Avery clause in which they agree to go to arbitration if a dispute arises, parties are free to decide on who to appoint on an arbitrator.

Question 59

Who is the arbitrator?

Answer 59

Section 15 of the Arbitration Act 1996 states that parties are free to agree on the number of arbitrators. If parties don’t agree only one is appointed. Parties are also free to decide on the procedure of selecting one.

Question 60

What is the award in Arbitration?

Answer 60

It is binding on both parties, can even be enforced through courts if necessary. Decision is usually final though it can be challenged in the courts on the grounds of serious irregularity in the proceedings or on a point of law. S68 Arbitration Act.

Question 61

What are the advantages of Arbitration?

Answer 61

• Parties can decide upon their own arbitration agreement and can decide upon the level of formality.
• Parties can decide upon own arbitrator which can allow for experts.
• Avoids the delay of having to explain to the judge as experts are present.
• The hearing time and place can be arranged to suit both parties.
• The process is very flexible.
• The matter is dealt with in private and there is no publicity.
• Quicker than an ordinary Court hearing.
• Usually much cheaper than going to a court.
• The award is normally final and can be enforced through the courts.

Question 62

Disadvantages of Arbitration?

Answer 62

• An unexpected legal point may arise in the case which is not suitable for decision by a non-lawyer or arbitrator.
• If a professional arbitrator is used, their fees may be expensive.
• It will also be expensive if the parties opt in for a formal hearing, with witnesses giving evidence and lawyers representing both sides.
• The rights of appeal are limited.
• The delays for commercial and international arbitration may be nearly as great in the courts if professional arbitrators are used.