civil courts and other forms of dispute resolution Flashcards
county ct and high ct
what is jurisdiction
what you are responsible for in that area
county ct jurisdiction
-cases under £25000 or less goes to county ct
-delt with by a circuit or a district judge
-landlord and tenant disputes (repairs)
-consumer disputes (faulty goods)
-personal injury claims (caused by negligence at work under £5000
-discrimination cases
-debt problems (creditor seeking payment)
-employment problems (wages)
-partnership and inheritance up to £30000
-small claims, fast track and some multi track claims
High ct jurisdiction
-based in London with 3 divisions
-Family divisions, KBD, Chancery division
Family division
-complex divorce cases, dissolution of partnership, custardy and adoption
-appeals from mags and county cts in matrimonial cases
-affairs of people who are mentally ill and simple probate matters
KBD
-deals with large complex claims for compensation
-contract and tort cases over £50000
-reviews actions of organisations to see whether they have acted legally and with liability
Chancery division
-deals with
-trusts
-contested wills
-bankruptcy
-mortgages
starting a claim
1- woolf reform 1999, encourage parties to follow a pre-action protocol (this is a list of things that should be done)
2- claimant should draft a letter explaining how the claim arises, why it is claimed and how the party is at fault - as well as details of injury and damage
3-D is then given three months to investigate the claim - they must reply setting out whether liability is admitted or denied. IF denied they need the reasons for denial. If expert is needed both parties should agree on an expert
4- If a decision is made to go to court, the claimant will issue the claim in either the county or the high ct depending on the values
5- The claimant will complete a form called N1 and pay an issue fee, The fee will vary depending on the amount being claimed. Citizens advice bureau can assist with the completion of the forms
5-D has several routes open to them when they receive a form-
i) admit the claim and pay the full amount
ii) Dispute the claim - if D wants to defend the claim he must send an acknowledgement of service (form N9) or defence within 14 days of receiving claim form.
7- If D doesn’t do either the claimant can be ask the ct to make an order for D to pay the money and cost claimed. This is called order in default
8- The claim is defended an allocation questionnaire is send out to both parties by the ct
8 points on small claims track
-value under £10000
-expert witnesses not allowed
-district judge in county c
-persona injury claims exceed £1500
-informal process where lawyers are discouraged
-Depending on complexity may go to fast track
-lasts half a day
No cost will be ordered from parties except:
-court fees
-witness expense
-expert fees (£200) per legal expert
8 points on the fast track
-Broadly falls between £10000 to £25000
-lasts no longer than a day
-district or circuit judge
-heard within 30 weeks
-single experts are encouraged
-claims by residential tenants go between £1500 to £25000
-losing party can be ordered to pay the winning parties reasonable costs
- can use a lawyer
8 points on the multi track
-Hears claims above £25000 or cases involving complex areas of law
-Heard by circuit judge in county ct but can be sent to high ct
-parties are encouraged to use ADR first
-Each case is managed by its individual need
-Judge will manage setting a timetable for disclosure of documents
-must have provided to other party before in ct
-£50000 or more moves to high ct
Mainly:
-human rights issues
-abuse
-neglect of children
8 points on intermediate track
-£25000 to £100000 (monetary relief only)
-2 experts per party for oral evidence
-trial should last no longer than 3 days
-claim isn’t suitable for small or fast track
-Claim is brought by 1 C to 2D or 2C to 1D
-Has 4 complexity bands
-Parties must agree the complexity of their case
-Band 1 is least complex to Band 4 which is most complex
6 points on arbitration
-most formal type of ADR
-An arbitrator takes lead of Arbitration
-S 1 of the arbitration act governs arbitration
-Uses a Scott v Avery clause
this is an agreement between parties to
use arbitration rather than go to court
-ABTA (Association of British Travel Agents uses Scott v Avery clause
-A Scott v Avery clause is enforceable
6 points conciliation
-a neutral person helps the parties reach compromise
-conciliation plays an active role in suggesting grounds for compromise
-parties have control over process
-parties may withdraw at any time
-parties must agree to compromise
-conciliator can suggest an alternative route
6 points on 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 point
-mediator doesn’t offer an opinion unless asked
-parties may choose method of mediation
-parties must agree to compromise
4 points on negotiation
-an individual attempts to resolve an issue directly, privately and possibly face to face
-the least binding from of ADR
-not enforceable by the cts
-more like a discussion or neighbourly dispute
advantages of meditation and conciliation
-both parties have control and can withdraw from the process at any point
-The decision doesn’t need to stick to the letter of the law and is based on common sense
-Makes it easier for companies to continue to do business in the future together and may include conduct of future business
-Avoid adversarial conflict of the ct room and a ‘winner/loser’ result of ct proceedings
disadvantages of mediation and conciliation
-there is no guarantee that the matter will be resolved which would then lead to going to ct after the failed attempt
-Requires a skilled mediator or conciliator with a natural talent and if the quality isnt there it may become a bullying excersise where the weaker party is forced into a settlement
-mediation settlements are often lower than settled prices
8 points on employment tribunals
-Used instead of going to ct
-70 diff tribunals
-enforcement act 2007
employment issues such as:
-unfair dismissal
-redundancy
-informal compared to ct
-bring a claim within 3 months of the incident
-contact ACAS to see if the problem can be resolved
-you can have someone represent you or represent yourself
8 points on the magistrates ct
-There are 3 magistrates including a chair who has the final say
-There is an usher who collects and takes away witnesses
-the magistrates are not legally qualified so they don’t get paid.
-summary offences within jurisdiction of triable either way
-the prosecution solicitor asks for evidence
-prosecutors are only as good as the evidence they are given
-evidence must have been gathered correctly
-if evidence was gathered incorrectly they may not use it
8 points on the crown ct
-D sits in the dock
-Barristers in the crown ct
-12 person Jury sits on case
-Judge decides on a public gallery
-cross examination asks witnesses questions
-closing speeches
-prosecution must have enough evidence
-judge interprets and upholds the law
8 points on Mode of trial
-once a person is charged with an offence they will attend ct and plea G or NG and sit trial if necessary
-All criminal cases start in mags ct but highly unlikely that they will be delt with at this point
-The type of offence committed affects the type of pre-trial hearing that take place as well as where the final trial takes place
-summary offences are the least serious offences and can be tried in mags or crown ct depedning on severity e.g. speeding, battery and common assault
-triable either way offences are the middle range offences and can be tried in mags and crown ct depending on severity e.g. theft and ABH
-indictable cases are the most serious offences and will always be tried in the crown ct e.g. murder, manslaughter and rape
what are the aims of sentencing
S.142 of the criminal justice act (altered by sentencing act 2020). The ct must have regard to the following purposes of sentencing.
A- the punishment of offenders
B- the reduction of crime (including its reduction by deterrence)
C- the reform and rehabilitation of offenders
D- the protection of the public and
E- the making of reparation by offenders to persons affected by their offenders
which theory goes with the protection of the public
incapacitation
what theory goes with punishment of offenders
denunciation and retribution
what theory goes with rehabilitation and reform
rehabilitation and reform
what theory goes with reparation of offenders behaviour
restorative justice
what theory goes with reduction of crime
deterrence
