Civil Courts and other forms of Dispute Resolution Flashcards
Civil Law
• Establish and uphold the rights of the individual
• cover a wide range of matters and arise when an individual or a business believes that there rights have infringed on in same way
- tort, family law, employment law, personal injury claims, contractual disputes
• Case started by claimant (plaintiff)
• County Court
• High Court
• Standard of proof needed
- balance of probabilities
• Decision made by judge
• Decision liable or not liable
• Powers of court
- compensation
- injunction
- court orders
ADR
• alternative dispute resoluton
• must be attempted first
• Negotiation
• Mediation
• Conciliation
• Arbitration
Pre Trial Procedures
• a pre action protocol is aimed at resolving disputes before they need to get to court.
• they explain the steps each party is due to undertake when starting a claim and the conduct that is expected of them
• if a settlerent cannot be reached then issuing a claim would be the next step
- claims are started by the completion of on N1 form
- claims are filed at a County Court office or the High Court (value dependent based on the track system) or onine for a debt claim
- a fee is charged for issung the claim
Civil Courts
Supreme Court
Court of Appeal
Divisional Court
High Court
County Court
claim started in Small Claims Court
Less than £10,000
Up to £1,000 in a personal injury claim
claim started in County Court
Less than £100,000
Between £1,000-£50,000 in a personal injury claim
claim started in either County or High Court
More than £100,000
More than £50,000 in a personal injury claim
Small Claims Track
• Less than £10,000
• Up to £1,000 for personal injury
• The claim will be heard by a District Judge and lawyers are not encouraged
• The hearing should be approx 2-3 hours and each party will be allowed a minimum number of witnesses
- limited number of shared witness
- last half a day
- don’t require legal representation
Fast Track
• £10,000 to £25,000
• A case allocated to this track will have a strict timetable set at a maximum of 30 weeks.
• If parties do not follow the timetable the claim can be thrown out or judgement awarded.
• One day maximum for a hearing in an open court with limited witnesses and heard by a Circuit judge
- more experienced than a district judge
• Each party can be represented by a lawyer
• Should be heard in one day
Multi Track
• £25,000 to £50,000
• Usually allocated to the County Court with a Circuit Judge.
• The case is strictly managed with a timetable.
• There is a set number of witnesses, set guidelines for disclosure of documents and the length of time the case will take
- higher number of witnesses
• If it involves an issue of more than £50,000, complex points of law it is likely to be passed to the High Court.
- complex cases only
- high value
- heavily publicised
County Court Jurisdiction
• Hear cases up to £100,000
• Deals with civil cases which are dealt with by a circuit or district judge
• Most common cases:
- landlord and tenant disputes such as possession (eviction), rent arrears, repairs
- consumer disputes such as faulty goods or services
- personal injury claims (injuries caused by negligence) such as traffic accidents or accidents at work less than £50,000
- discrimination cases
- debt problems such as a creditor seeking payment
- partnership, trusts and inheritance
- small claims, fast track and some multi track cases
High Court Jurisdiction
Family Division
• complex divorce cases
• dissolution of civil partnership
• wardship
• adoption
• all cases related to children
- The Children Act 1989
• domestic violence
• appeal from magistrates
county courts in matrimonial cases
• affairs of people who are mentally i’ll
• simple probate matters
Kings Bench Division
• large/complex compensation claims
• contract and tort cases › £50,000
• admiralty court
• commercial court
- review actions of organisations owned by the state
- acted legally with libel and slander by way of judicial review
Negotiation
• The least binding form of ADR
• Not enforceable by the courts more likely to be in more of a discussion
• Like a neighbourly dispute
Mediation
• Neutral person helps parties reach a compromise solution acting as a facilitator
• Parties have control over the resolution process
• Parties may withdraw at any time
• Mediator does not offer an opinion unless asked
• Parties may choose the method of mediation
• Parties must agree to the compromise
• Formal mediation
- a formal settlement conference is like a mini trial but there are no binding results. Credit examples e.g. Relate
Conciliation
• Neutral person helps parties reach a compromise solution
• Conciliator plays an active role suggesting grounds for compromise or settlement
• Parties have control over the process
• Parties may withdraw at any time
• Parties must agree to the compromise
Arbitration
• Most binding form of ADR
• Scott v Avery Clause
- section in contracts of partnerships to agree to arbitration
• Parties decide if arbitrator or panel of arbitrators
• Both sides present case to arbitrator
• Arbitrator makes award
- legally binding decision
Advantages of ADR -
Costs
• Cheaper to solve disputes as there are no court costs
- potential reduction or removal of costs for legal advice
• Makes process more accessible to claimant
Advantages of ADR -
Speed
• Court system takes more than 48 weeks
• Resolve matters more quickly than a court hearing
Advantages of ADR -
Control
• Parties have more control over ADR than handing control to courts
• Can withdraw at any time
Advantages of ADR -
Flexibility
• Time and place can be arranged to suite both parties
• More informal and relaxed hearing
• Convenience chosen by claimant
Advantages of ADR -
Expertise
• Choose their own mediator/conciliator/arbitrator
- technical expert
• Makes parties more at ease with process
Advantages of ADR -
Privacy
• Dealt with in private so no publicity
• Encourages cooperation
• Allows relationships to continue
Disadvantages of ADR -
Legal Arbitrator
• if an unexpected legel point arises, the case may not be sutable for a non lawyer arbitrator
• some cases may be unable to have chosen arbitrator due to content so may have to pay for legal professional or court
- may be too complex for arbitrator and court and legal representation is needed
Disadvantages of ADR -
Professional Arbitrators
• It can be expensive to hire a professional arbitrator as you have to pay a fee
• Thos may limit the options of one party if a professional is not accessible to them
- process is not vastly cheaper
Disadvantages of ADR - Formal Hearing
- It can be expensive if parties opt for a formal hearing following ADR
- This means that the lesser party may be unable to withdraw as they cannot afford a court or arbitrator
- There is no guarantee that ADR will be successful
Disadvantages of ADR - Limited Rights of Appeal
- No appeal route for any but arbitration
- The results of ADR may favour one party
- Parties are able to back out of agreement
Advantages of Civil Courts - Legally binding
- Both parties are guaranteed that the matter will be resolved
Advantages of Civil Courts - Legally Qualified Person
- A judge deals with cases
- Appropriate for cases with complex legal issues
- Will end in a competent legal decision
Advantages of Civil Courts - Parties cannot walk away
- Save costs
- Failed mediation or conciliation results in additional time and cost us litigation is needed
Advantages of Civil Courts - Judge has control
- The case will be allocated to the correct track
- The case takes place on a strict timetable to include a hearing length and number of witnesses
- Minimises delay
Disadvantages of Civil Courts - Expensive
- It is recommended that parties seek legal advice and representation
- Legal funding is often removed for civil cases
- It may not be an option for those with limited funds
Disadvantages of Civil Courts - Judges are not technical experts
- Expert witnesses may be needed which causes a delay
- Add to length and cost of trial
Disadvantages of Civil Courts - Adversarial
- Winner takes all
- No compromise
- May destroy business and personal relationships
Disadvantages of Civil Courts - No guarantee the defendant will pay claimant
- May have to take enforcement action
- Adds to cost
- Claimant may feel it’s not worth extra expense and inconvenience
Civil Appeals
1st Appeals
• If first heard by district judge, appeal to circuit judge
• If first heard by circuit judge, appeal to High Court judge
2nd Appeals
To the Court of Appeal
• Only allowed under s55 Access to Justice Act for following reasons:
- appeal raises important point of principle
- there is a compelling reason for the court to hear it
• Appeals from the High Court usually go to the court of appeal but cases of national importance leap frog to the supreme court
• Further appeals from the court of appeal must have leave to appeal to the supreme court
Employment Tribunals
- Deal with issues such as unfair dismissal, discrimination in the workplace or redundancy
- Less formal than courts
Employment Tribunals - Preliminary Matters
- A claim has to be brought working 3 months minus one day from the events
- This could be a dismissal from a job
- ACAS is generally the main body involved in dispute resolution for employment tribunals
- They should attempt to resolve it through conciliation first and only if it cannot be resolved should a claim be lodged
- ACAS will represent you for free
- The claimant will often seek legal advice on their claim to review how likely it is to succeed
- The claim must set out detailed information and reasons for the claim and why it has been actioned
- The claim must be filed within the tribunal and it will then be passed to the employer
Employment Tribunals - The Hearing
- Hearings are held in private rooms however the public can sit in if they wish
- The panel is a judge, one person representing the employer and one representing the employee
