Civil Courts And Alternatives

Question 1

What are civil claims, what two courts have them and how much does the claimant have to prove their case W20P1 and P18

Answer 1

Civil claims are claims made in the civil courts when an individual or business believes their rights have been infringed in some way.
Happen in the County and High Court.
On the balance of probabilities - 51% or more. The civil equivalent to guilty is liable. Normally compensation or an injunction.

Question 2

County Court P18 and 19

Answer 2

About 200 County courts. Can hear almost all civil cases. The main areas of jurisdiction are all contract and tort claims, all cases for the recovery of land and equitable matters up to a value of £350,000.
Heard by a Circuit or District Judge and in the rare occasion sit with a jury of 8. Only for defamation cases, torts for malicious prosecution or false imprisonment.

Question 3

High Court P19

Answer 3

Has the jurisdiction to hear any civil case and has three divisions each of which specialises in hearing different type of cases.
The Queen’s Bench Division, the Chancery Division and Family Division.

Question 4

Queen’s Bench Division P19

Answer 4

The biggest of the three and deals with contract and tort cases where the amount claimed is over £100K, it can hear smaller cases where there is an important point of law. Normally heard by a judge but can be heard by a jury of 12 in rare cases. There is an administrative court where the court supervises the lawfulness of the conduct of national and local govs through judicial review.

Question 5

Chancery Division P19

Answer 5

The main business of this division is concerned with things such as insolvency of companies and individuals, the enforcement of mortgages and copyright and patents etc.
There is also a special Companies court in the division which deals mainly with winding up companies. Single judge and never jury.

Question 6

Family Division P19

Answer 6

Family cases where there is a dispute country’s law should apply, the Crime and Courts Act 2013 created a separate family court, but the Family Division can still hear these cases. All international cases concerning family law under The Hague Convention.

Question 7

Pre-action protocols and which court to use P19

Answer 7

Parties are encouraged to give info to each other, so that not as many court cases are needed to be started. Especially for personal injury claims, there is a list of actions to be done. If this is not done and they don’t give info they may be liable for costs if it goes to court.
The court it goes to depends on the amount being claimed.
If the claim is less than £100K must be started in the County and less than £10K small claims. Personal injury is less than 50K county and less than 1K small claims. If over these amounts can decide where to start.

Question 8

Issuing and defending a claim P20

Answer 8

Issuing a claim
You have to get a claim form, the court office will give notes how to fill in the form, you can also make a money claim online.
Claim has to filed at the court office and a fee has to be paid.
Defending a claim
The defendant may admit the claim and pay the full amount. The defendant has 14 days to either an acknowledgement of service or a defence to court, if not then they have to pay.
The court will decide on the track.

Question 9

The three tracks P20 and 23

Answer 9

Small claims track
Maximum claims of £10K or 1K for personal injuries, half a day in court and heard by a District Judge in the County Court, legal representation is discouraged (cannot claim cost of lawyer even if win) and many cases are online with no need to go court.

Fast track
Maximum claim 25K, aim is to have case heard within 30 weeks but 50 is more likely. Normally heard in court and more formal to save time, the trial can be up to one day. Only one witness is normally allowed and heard by a District or Circuit Judge in the County Court.

Multi-track
Any case too large or too complex for the fast track. The judge will decide the maximum legal costs that can be claimed by the winner. Held by a Circuit Judge in the County Court or a High Court Judge. Once goes to this track it’s managed by the judge, aimed at keeping the costs down.

Question 10

What reform has there been in the Civil Court P23

Answer 10

Started in 1999, based on the reforms recommended by Lord Woolf. He said the civil justice system should be just in the results it delivers, be fair in the way it treats litigants and offer appropriate procedures at a reasonable cost. Bought in the three track system which gave judges more responsibility for managing cases. It made documents and procedures more simple.

Question 11

The effect of the reforms P23

Answer 11

There is no more co-operation between the parties lawyers and it has reduced the time between the the claim and the court case.
However, there are still many problems such as Alternative Dispute Resolution is not used enough, costs of cases have continued rise and the courts are still under resourced.
Other reforms that could come in are things like small claims for personal injuries going from 1 to 5000, there should be an out of hours private mediation service in the County Court and an online court should be set up.

Question 12

What are the appeals from the County Court P24

Answer 12

There are different appeal routes from the County and High Court, the value of the claim and the level of the judge who heard the case will affect the appeal.
If the case was heard by a District Judge, then the appeal is to a Circuit Judge in the same County Court. If the case was Heard by a Circuit Judge then the appeal is to a High Court Judge.
There can also be further appeal, this will always be to the COA (Civil Division). This is only the case if it rises an important point of principle or there is some other compelling reason for the COA to hear it.

Question 13

Appeals to the High Court P25

Answer 13

Appeals usually go to the COA Civil Division. In rare cases there may be a leapfrog appeal straight to the SC. Since 2015 it must be of national importance or raise sufficient importance to warrant the leapfrog. The SC has to give permission to appeal. From the COA you can appeal to the SC but they have to give permission to appeal.

Question 14

Advantages and disadvantages of using the courts P25

Answer 14

Advantages
The process is fair as everyone is treated alike, the trial is conducted by a legal expert, enforcement of the court’s decision is easier, there is an appeal process and it’s possible to get legal aid.
Disadvantages
Cost, delay, complicated process and uncertainty.

Question 15

What are tribunals P27

Answer 15

Operate alongside the court system. They were created in order to give people a method of enforcing their entitlement to certain social rights. These disputes can not be resolved in court.
They are forums used instead of court for deciding certain types of disputes. They are less formal than courts.

Question 16

What is the role of tribunals P27

Answer 16

Enforce rights which have been granted through social and welfare legislation. There are many different rights such as the right not to be discriminated against and the right to a payment if you are made redundant.
New developments in the welfare state resulted in new tribunals.

Question 17

What is the organisation of tribunals P27 and 28

Answer 17

Reformed by the Tribunals, Courts and Enforcement Act 2007.
First-tier Tribunal operates in 7 Chambers (divisions).
Social Entitlement Chamber, Health, Education and Social Care and Taxation for example. The Employment Tribunal is separate from the first-tier Tribunal which hears cases such as unfair dismissal and discrimination.
The Upper Tribunal has four divisions: Administrative Appeals Chamber and Land for example.
There is also further appeal to the COA and then the SC.

Question 18

What is the composition and procedure of tribunals P28

Answer 18

Cases in the first tier will be heard by a Tribunal judge and for some cases two non-lawyers will sit with the judge who will have no expertise in the area. In the Employment Tribunals one will normally be an employer and the other an employee.
The procedure is both sides will have the opportunity to put forward their case, in some tribunals this will be done using a witness such as Employment and you tend to represent yourself. However, in tribunals people are often represented by a trade union. The decision is binding.

Question 19

Advantages and disadvantages of the tribunal P29

Answer 19

Advantages
More cheap, quick, informally and by experts in the area.
Disadvantages
Lack of funding, more formal than alternative dispute resolution and delay.

Question 20

Alternative Dispute Resolution P29

Answer 20

Filler

Question 21

What is Negotiation and what are the advantages and disadvantages P29 and 30 and W20P1

Answer 21

The parties sort it out between themselves.
Advantages
It can be conducted by the parties themselves, it can be used at any point in the dispute, it’s the cheapest method of resolving a dispute and a negotiated resolution can include agreements about future business deals.
Disadvantages
It may not be successful so other methods have to be used, doesn’t work where the parties are antagonistic towards each other, if there is repeated unsuccessful attempts it may prolong the whole issue.

Question 22

What is mediation P30 and 31

Answer 22

This is where a neutral mediator helps the parties to reach a compromise solution. They will consult with each party and see what their position is and carry offers between the parties. The mediator doesn’t normally share their views but if the parties do it becomes more of an evaluation exercise.
It’s useful in business agreements and must be used before court in family cases unless there has been domestic violence.
There are different services for example the Effective Dispute Resolution does business disputes while Kent Family Mediation Service is for family disputes.

Question 23

What is Conciliation P31

Answer 23

Similar to mediation, a neutral third party helps resolve the dispute, but they will discuss the issues with both parties to help them reach a better and the conciliator will suggest solutions.
In industrial disputes the Advisory Conciliation and Arbitration Service can give an impartial opinion on the legal position

Question 24

What are the advantages and of mediation and conciliation P31

Answer 24

Advantages
The parties are in control of the process and can withdraw, a decision can only be made if both parties agree. Doesn’t need to be strictly legal and can be based off common sense. Makes it easier for businesses to work together in future and it may include future agreements which cannot happen in court. It avoids the winner and loser result of the court and everyone wins. Can also shorten court if still needed.

Question 25

What are the disadvantages of mediation and conciliation P31

Answer 25

No guarantee the matter will be resolved, therefore increase costs and delay. If the mediator or conciliator is not good the weaker party may be forced into an agreement and more likely where they give suggestions. The amount agreed is often lower than other settlements and less than the amount awarded in court.

Question 26

What is Arbitration P32

Answer 26

The other meaning is where courts use a more informal procedure.
Governed by the Arbitration Act 1996.
Voluntary submission by the parties of their dispute to the judgement of some person other than a judge. Such agreement will normally be in writing. The precise way in which it’s carried out is left almost entirely to the parties’ agreement.

Question 27

The agreement to arbitrate P32

Answer 27

The agreement to arbitrate can happen before the dispute or when it becomes apparent. Many commercial contracts have a Scott V Avery clause, which is where in the original court the parties agree that if they have a dispute it will go to arbitration. The Arbitration Act says that the courts will normally refuse to deal with such dispute.
However, for a small claims consumer claim, the consumer can insist it’s heard by small claims

Question 28

How is an arbitrator selected P32 and 33

Answer 28

The Arbitrator Act says that the parties can choose how many arbitrators but if they cannot agree there will be one. In most agreements will either name an arbitrator or provide a method for choosing one. In commercial cases it’s often the president of the appropriate trade organisation that will appoint it. Often the person will have expertise in the field or if it involves a point of law it may be a lawyer and as a last resort the court can appoint an arbitrator.

Question 29

The Arbitration hearing P33

Answer 29

The actual agreement is left to the parties. There can be written submissions which include all points the parties want to raise and documents, this can also be coupled with oral submissions. A witness can also be asked to give evidence on oath, but very formal. The Arbitration Act allows for court procedure to ensure witnesses attend. The date, time and place can be agreed by those involved. The decision is called an award and this is binding on the parties. It can only be appealed if there is a serious irregularity in proceedings or point of law.

Question 30

What are the advantages of Arbitration P33

Answer 30

Advantages
The parties can agree on an arbitrator, so they can agree on an arbitrator or lawyer, if there is a question of quality this can be decided by an expert in the field saving witness and judge time, time and place can suit both parties, the parties can choose which procedure is used, no publicity as private, quicker decision, normally much cheaper and the award is normally final which can be enforced through the courts.

Question 31

What are the disadvantages of arbitration P33

Answer 31

There is no legal aid so it may not be fair, an unexpected legal point may arise which requires a lawyer, a professional arbitrator can be expensive, if there is a formal hearing with lawyers it may be expensive, the delays for commercial and international arbitration may be nearly as long as the courts it professional arbitrators and lawyers are used.

Question 32

Examples of online dispute Resolution P34

Answer 32

eBay resolves 60 million disagreements every year. The parties are initially encouraged to resolve the matter themselves. eBay have structured advice on how to reach an agreement. If not there is a resolution service, where they go in a discussion area and present their argument. The eBay staff will decide a binding outcome under their Money Back Guarentee. This process is fast with strict time limits.
Resolver helps customers raise complaints with suppliers or retailers. They have the email of over 2000 major organisations. The customer is given support and is then set to the company, the company is urged to respond to the Resolver email so it can be stored. It’s free for both customers and organisations.
Financial Ombudsman Service
Established by statute in 2000 as the mandatory body in the financial services sector. Aims to resolve disputes between consumers and UK-based financial businesses quickly and with little formality.
The service case handlers (adjudicators) attempt to facilitate dispute normally by giving their opinion on a fair outcome. If the parties disagree agreed to be referred to an ombudsman for a final binding determination which is binding.

Question 33

Advantages and disadvantages of Online Dispute Resolution P35

Answer 33

Advantages
People can do it from their homes, often free or a set amount at the start so no hidden costs or the need to pay for a lawyer and convent where the parties live in different countries
Disadvantages
Not useful in all cases such as traffic accidents where you need to decide if someone is telling the truth, face to face is better. If the parties don’t accept the decisions they may still go to court.

Question 34

Online Court P35

Answer 34

In 2016 it was proposed there should be an online court. This was seen to be a good idea because it was thought it would make things more affordable and accessible etc. Don’t know how to condense it into a card. On page 35.

Question 35

Tribunal question

Answer 35

Set up to deal with specific kinds of disputes such as rights that have been enforced through social and welfare legislation.
Disputes are normally against the state.
There will be a qualified chair person who have legal knowledge.
There are two lay people who are experts such as someone from HR and someone from a Trade Union.
There is the Employment Tribunal which was created by the Crime and Courts Act 2013 that sees a appeals for unfair dismissal for example.
Appeals go the the Employment Appeals Tribunal.
They are private.
There is also the Mental Health Tribunal and could be for being sectioned have to have the treatment.