Civil courts and other forms of dispute resolution Flashcards
What does the County Court jurisdict over? (Three minimum)
Contract, Equality Act 2010 Cases, Inheritance up to 30,000, Tort, Partnerships & Trusts, Divorce, family and bankruptcy
What track does the County Court handle?
All three: Small Claim, Fast Track and Multi-track.
What judges sit in the County Court?
CIrcuit or District Judges.
What is the limit as to how much can be claimed in a County Court before it is moved up to the High Court?
£100,000, unless it is personal injury, which it will then be £50,000
What are the three benches of the High Court?
King’s Bench Division
Chancery Division
Family Division
What does the King’s Bench Division jurisdict over? (Three minimum)
Contract & Tort. Hears ALL defamation and Judicial review cases.
What two courts are included in the King’s Bench Division?
Commercial Court & Admiralty Court
What does the Chancery Division jurisdict over? (Three minimum)
Insolvency, Business matters, mortgages, trusts, property disputes, copyright and patents, intellectual property and probate disputes.
What Court is included in the Chancery Division?
Patents Court
What does the Family division Jurisdict over? (Three min)
Children Act 1989 Cases (welfare), adoption, defended divorce.
What did the Crime and Courts Act 2013 do?
Made a new Family Court which replaces much work of the Family Division.
What tracks does the High Court handle?
Multi-Track only.
Which Judges sit in the High Court?
Mainly High Court Judges.
How much money must be at stake for a High Court case?
Over £100,000 unless it is Personal injury then it is over £50,000
What is a Divisional Court?
The amount of judges sitting in the High Court.
What is Small Claims and its procedure?
-Any claim of less than £10,000 or £1,500 for personal Injury & landlord + tenant cases.
-Cases heard by County Court by inquisitorial District Judge, can be heard by Circuit Judge, typically 2-3 hours in length.
-No legal rep typically required, no costs payable.
What is Fast track and its procedure?
Cases between 10k-25k (over 1,500 for personal injury)
Heard in County Court before District Judge, can be heard by Circuit Judge with strict trial time of one day and limited no of witnesses
Case usually hard within 30 weeks of allocation
Legal rep typically used
What is Multi-Track and its procedure?
Cases of 25k+ (or less if it includes complex law)
Heard in County or High Court depending on value or if it becomes complex points of law
Some specialist areas only heard in High Court
Judge will actively manage case & set strict timetable including what must be disclosed and how any witnesses will be use and trial time.
What is the additional track added in October 2023?
Intermediate Track, £25,000-£100,000
What is the pre-trial procedure?
A claimant may be advised to use money claim online. At the start of the claim, the claimant will be required to complete N1 form setting out all particulars of the case.
The judge allocates the case to a track and Court.
Pre-action protocols (a list of things parties must do before a claim can be issued) & letter of claim (Letter before action) must have D responding within a certain time limit.
What are three examples of grounds to appeal?
-Error of law
-Error of fact
-Procedural unfairness
What is the appeal route from the county court in simple words?
Small claim/Fast Track County (District) -> County (Circuit judge) -> Court of Appeal (only if Case stated or there is a point of law) Civil division -> SC
Fast Track County (Circuit Judge) -> High Court (HC Judge) -> CA Civ div -> SC
What is the appeal route from the High Court?
High Court (Multitrack) -> Court of Appeal (Must have case stated/point of law issue) -> SC
High Court -> (Leapfrog appeal) -> SC
What are the Advantages of Civil Courts?
A qualified Judge & experienced lawyers can deal with complex legal matters and evidence
Cases will be allocated to the most effective track or court
Precedent means lawyers can predict outcomes more accurately
Civil courts have clear, structured appeal routes unlike ADR. Not limited to just points of law
What are the disadvantages of Civil Courts?
Long delays & Fast-track cases be rushed
Losers pay own & winners cost (Uncertainty)
Need lawyers so more confrontational, no more goodwill between parties, inequality of bargaining power if one cannot afford a lawyer.
Allowing appeals can delay clsoure and final outcome. Less compromise.
Enforcing judgement if a loser refuses to pay after case involves more cost.
What did the Woolf Report 1996 recommend about ADR?
That its use is increased in Civil matters.
What are the forms of Conflict Resolution?
Negotiation
Mediation
Conciliation (third party actively suggests compromise)
Arbitration (Third party makes binding decision)
Litigation (Civil Court Action)
Describe Negotiation
The parties or their representatives may try to resolve by direct communication eg consumer dispute when returning goods or asking qualified negotiators to act on behalf of the parties. Not binding.
What is the advantages and disadvantages of Negotiation?
Advs-
Parties can control process
Informal + in private.
Fast/immediate.
Cheaper than Court.
Disadvs-
Parties need to co-operate.
No binding means there may not be resolution.
Describe mediation
Mediators = neutral advisors. Usually lawyers of 7 years standing.
Consult with parties who voluntarily refer issue to them & exchange info but will not suggest solution. Act as a go-between. Not binding but can give parties understanding of likely outcome of Court. Parties can withdraw at any time.
This can be things like Neighbourhood or Family mediation.
What do the Commercial Mediation Services do? (Centre for Dispute Resolution - CEDR)
-Parties agree to accept named mediator
-Each draw up brief written summary of their version of dispute
-Meet & mediator tries to clarify issues
-Parties present case to each-other
-Each meets privately with mediator & discusses options
-Compromise solution agreed on
Describe Conciliation
What is ACAS?
3rd Party may offer non-binding solution that could lead to a settlement. Many county courts have conciliation schemes.
ACAS - The Advisory, Conciliation and Arbitration service aims to promote industrial relations. Mediates impartially in disputes. Deals with employee disputes, individual dismissal cases & T.U recognition matters.
Panel of nine include representatives from employer & employee organisations. Funded by DTI but fully independent, has statutory power to resolve before matters reach ET.
What are the Advs and Disadvs of Mediation & Conciliation?
Advs-
Avoids adversarial attitudes
Private
Common sense important
Parties can control it
Disadvs-
Mediation sums usually less than awarded in Civil Courts
Mediator/Conciliator may bully one party
Process may not bring resolution
Both Parties must cooperate
Describe Arbitration
Where parties voluntary allow someone other than a judge to consider their claim.
Written agreements controlled by Arbitration Act 1996.
What does the Arbitration Act 1996 state?
a) The aim is to obtain fair resolution of disputes without delay or expense.
b) Parties must agree how the dispute will be resolved.
c) Arbitration Act rules come into play where parties have not agreed their own rules.
d) If both parties agree arbitration may be abandoned in favour of Court action.
What are the two ways Arbitration may arise?
A) After a dispute arises (Parties may agree to it anytime)
B) By contract before a dispute arises (Many agreements contain a ‘ Scott v Avery clause ‘ which say they must go to arbitration, by entering they both agree to this. )
If parties have agreed to arbitration a court will not allow them to switch except where it includes a consumer contract within small claims limit.
What are three Trade Association arbitration schemes?
ABTA, FMB & ACAS.
How may someone choose na arbitrator?
May be found through trade association or chartered institute of Arbitration.
Parties may agree onpanel of arbitrators or just one but the person chosen must be a neutral 3rd party even if they aren’t an expert.
Parties should ensure:
A) He has no connection to either party
B) He has necessary expertise
C) He has experience of the area in dispute
Describe the Arbitration hearing.
Parties agree to procedure which suits them, whether paper or oral hearing it must be suitable to the circumstances of the case
The date, time & place of hearing are all for parties to decide with the arbitrator.
Arbitrators fees can be high but usually quicker and hearing date usually made at mutually convenient time.
Appeal - Arbitration Act 1996 s69 gives a limited right to appeal to a court only if its on point of law and both parties agree or the court gives leave (This is rare)
What are the advantages of Arbitration?
Cheaper than fast or multi-track, Legal rep usually not needed
Award is given
Less backlog of cases
Not formal - in private, not public hearing
Experts hear specialist areas of law, Arbitrators are experts and qualified
Parties can be involved and they control process - it is flexible and they choose the time place and arbitrator
Award is final - binding can be enforced via courts.
Preserves goodwill for future businesses & avoids aversaral winner/loser attitude.
What are the disadvantages of Arbitration?
Small claims may be cheaper & easier but arbitration can be formal and complicated, enforcement involves going through courts and Arbitrators are very expensive.
No process may not bring resolution, parties may still just go to Court.
Delays are growing.
Mediator/Conciliator may bully one party
Lack of legal expertise if it is a complicated point of law.
Parties need to co-operate.
No appeal unless both parties agree or serious irregularity in point of law involved.
Mediation sums usually less than awarded in civil courts
What is the difference between Courts & ADR?
Courts - Small claims cheap, may be cheaper
-You can appeal
-Judge has legal but not topic specific expertise
-Long delays but– fast track.
ADR - No rule that loser pays winners, generally cheaper.
Rare to appeal & only on points of law and agreed by both parties.
Those who run ADR schemes often specialist knowledge & base decisions on common sense.
Quicker but delays are growing.
Are employment tribunals mandatory alternatives to going to court in Civil matters?
Yes
What is the role of Tribunals?
Connected with Civil rights (Benefits, redundancy payments, disability discrimination, etc)
How do Tribunals work alongside the court system? What are the issues they hear?
There are 70 different types including employment tribunals, immigration services tribunals, lands tribunals, etc.
Issues heard may include:
Right to mobility allowance
Right to redundancy pay
Right not to be discriminated
Right of immigrants to have case of political asylum heard
Describe employment tribunals
Operate independently & governed by own leg. Makes independent decisions around employment law and are responsible for claims from people who think someone eg employer has treated them unlawfully.
What is the Role and Jurisdiction of Employment Tribunals?
Deal with issues like:
-Unfair dismissal
-Discrimination
-Unfair deductions from pay
What is the composition of an Employment Tribunal?
Each employment tribunal made up of three members: Legally qualified chair, Representative of employers & representative of employees.
Judicial bodies consisting of:
A chairman (Lawyer 7yrs+)
Individual nominated by employer association
Another by TUC or TUC-affiliated union
Independent panels & make legally binding rulings.
How were Employment Tribunals originally created?
Via the Industrial Training Act 1964 with aim to improve relations and provide informal route to resolve disputes quickly and cheaply. Became one of most technical & difficult areas of law and no quicker and as equally complex as other courts now.
Who are Employment Tribunals governed by today?
The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013
What is the role of Conciliation and ACAS in Employment Tribunals?
Parties are encouraged to go there first to see if it can be resolved.
How do employment tribunals work?
1) Dispute arises
2) Try to sort informally/directly with employer
3) Early conciliation (Employee must contact ACAS to try and resolve dispute through conciliation)
4) ET1 sent claim form to tribunal office
If claim accepted Tribunal Office contacts employer
5) Respondent has 28 days to respond using ET3
6) If none received or accepted, judgment issued for claimant.
If employer disputes claim - hearing held.
7) Judgment issued.
What is the role of the Employment Appeal Tribunal?
Consider grounds of appeal and will either arrange a hearing date or order preliminary hearing to decide if it may proceed to full hearing.
Claims not proceed unless legal point which has legal merit to have a full hearing.
Follow and structure incorporating hierarchy and appeal route like other Courts.
What are the advantages of Tribunals?
Hearing date fixed quickly
Often only a day long
Cheaper as you needn’t legal rep unless you want it and public funding is available for a few (eg Mental Health Review Tribunal)
Less formal than courts, flexible procedures
Expert panel in employment law
Frees court time for other issues
What are the disadvantages of Tribunals?
Inequality of bargaining power as no legal aid for employee but employer usually rep.
More formal than ADR since Franks Committee due to attendance of Lawyers
Difficult to control
Delays increasing despite intention to deal with cases quickly
Appeals limited to issues of law.
