Civil Courts and other forms of dispute resolution Flashcards
What is the primary function of criminal courts in the UK?
To adjudicate cases involving alleged violations of criminal law.
Fill in the blank: The _____ Court is responsible for trying the most serious criminal offenses in the UK.
Crown
What type of cases does the Magistrates’ Court primarily handle?
Less serious criminal offenses and preliminary hearings for serious offenses.
What is plea bargaining?
A negotiation between the prosecution and defendant where the defendant may plead guilty to a lesser charge.
What is the purpose of alternative dispute resolution (ADR)?
To resolve disputes outside of the court system.
What are the two main types of ADR?
Mediation and arbitration.
Fill in the blank: In arbitration, the decision made by the arbitrator is _____ and enforceable.
binding
What is the role of a mediator?
To facilitate communication and negotiation between disputing parties.
True or False: The decisions made in mediation are legally binding.
False. Mediation results in a non-binding agreement unless formalized in a contract.
What does the term ‘jurisdiction’ refer to in the context of courts?
The authority of a court to hear and decide cases.
What is the purpose of a preliminary hearing?
To determine whether there is enough evidence for a case to proceed to trial.
True or False: Victims have the right to attend criminal trials in the UK.
True.
Country court can try most civil claims up to ___________ in value
100,000k
What are the typical cases held in the country court?
-Negligence claims where a person has suffered injury or loss because of the action or failure of another
-Other tort claims, such as nuisance or trespassing
-Debt claims and consumer disputes which generally involve a breach of contract
-Housing claims, including possession of residential and commercial properties and other landlord and tenant issues such as eviction
-Bankruptcy and insolvency matter
-Probate claims and other claims in relation to wills and trusts
who are the cases in county court heard by?
Claims will be heard in open court, usually by a circuit judge but some cases are heard by a recorder. If the case is relatively straightforward and low value, then it can be heard by a district judge. The judge will read the case papers before the hearing and can hear evidence and legal agreements in court.
What does the judge decide at the end of the hearing?
At the end of the hearing the judge will decide:
-Liability- which side ‘wins’
-The compensation payable, if any, or
-The other remedy requested, such as eviction notice and,
-who should pay the costs of the case
What is the smalls claims track?
The small claims track is part of the county court and deals with claims less than 10000k in an informal way, cases are heard by a district judge and lawyers are discourages and as a result there is less legal arguments and costs will not be awarded.
Define what the High Court is-
Similar to the county court, claims will be heard in open court by a single judge. The judge will be assigned to one of the three divisions- the queens bench division, the chancery and the family court. They will only hear cases relating to their divisions work.
The queens bench division
-The largest out of the divisions
-Has the jurisdiction to hear a variety of cases including contract and tort claims over 100,000 k in value and small claims where a complicated issue of law is involved.
Name some of the several specialist courts of the queens bench division-
The administrative court which hears
—> applications of judicial review and application for habeas corpus
—> case stated appeals in criminal cases decided at the magistrates
-Circuit commercial courts
The chancery division-
The court has the jurisdiction to deal with the following types of cases:
-Disputes relating to business, property or land where over 100,000k is in issue
-Disputes over trust
-Continueous probate clains]
-Disputes about partnership matters
name two specialist courts of the chancery division
specialist courts of the chancery division include the insolvency and companies list.
The Family division
Family division:
Cases in this division are generally heard in private as they are often dealing with sensitive matters. It has the jurisdiction to hear-
-Cases where the child is to be made a ward of the court and issues relating to the welfare of children under the children’s act 1980
-Appeals from lower courts such as the family proceedings court, which are part of the magistrates court, and complicated family cases transferred from the country court.
-Case with a foreign element such as abduction, forced marriage and fgm.
What are the advantages of tribunals?
They are cheap as applicants often represent themselves; they are often very short; the hearing is more informal than in court and most are heard in private; two non-lawyers sit to hear the case who are often experts in the field.
What are the disadvantages of tribunals?
Legal aid funding is not available for most tribunals; it is more formal than ADR; there can be delays in getting a hearing.
What are the advantages of negotiation?
It can be conducted by the parties themselves; can be used at any point in the dispute; it is the cheapest method; can include agreement about future business deals.
What are the disadvantages of negotiation?
It may not be successful; can be unsuitable where parties are antagonistic; repeated unsuccessful attempts may prolong the issue.
What are the advantages of mediation/conciliation?
The parties are in control and can withdraw at any point; decisions need not be strictly legal; companies can continue doing business; avoids adversarial conflict.
What are the disadvantages of mediation/conciliation?
No guarantee of resolution; requires a skilled mediator; amounts paid in mediated settlements are often lower.
What are the advantages of arbitration?
Parties may choose their arbitrator; quality questions can be decided by an expert; hearing time and place can be arranged; procedure is flexible; matters dealt with in private; resolved more quickly; much cheaper than court; award is normally final.
What are the disadvantages of arbitration?
No legal aid available; unexpected legal points may arise; using a professional arbitrator can be expensive; limited rights of appeal; delays may be similar to court.
What are the advantages of online dispute resolution (ODR)?
People can resolve disputes from home; often free; convenient for international disputes.
What are the disadvantages of online dispute resolution (ODR)?
Only suitable for certain types of disputes; parties must accept the decision.
What are the four types of Alternative Dispute Resolution (ADR)?
Negotiation, mediation, conciliation, arbitration.
What is negotiation?
The process of trying to come to an agreement; most private, quickest, and cheapest form of ADR.
What is mediation?
Using a neutral person to help parties come to a compromise solution; the neutral person acts as a facilitator.
What does a formalized settlement conference of mediation involve?
Mini trial; panel with representatives from each side and a neutral person; parties try to agree; neutral person mediates.
Where is mediation often important?
In family cases, parties must show they attended a Mediation Information and Assessment Meeting (MIAM) before court proceedings.
What has been growing in terms of mediation?
Commercial mediation services, such as the Centre for Effective Dispute Resolution (CEDR) established in London in 1991.
What is the cost of a mediator?
£1000 to £1500 per day whereas courts cost over £100,000 per day.
What is conciliation?
Mediation where the neutral party takes on a more pro-active role; offers an opinion for compromise.
What is an example of a conciliation service?
ACAS (Advisory, Conciliation and Arbitration Service) is used in industrial disputes.
What is arbitration?
An arbitrator hears both sides of the dispute and makes an award; the award is normally final and enforceable.
What governs private arbitration?
The Arbitration Act 1996.
What does the Arbitration Act state?
The object of arbitration is to obtain fair resolution of disputes by an impartial tribunal without unnecessary delay or expenses.
How are arbitrations normally agreed?
In writing, and the Arbitration Act 1996 applies only to written arbitration agreements.
What is a Scott v Avery clause?
A clause in commercial contracts where parties agree to settle disputes by arbitration.
What happens when there is an arbitration agreement in a contract?
The court will normally refuse to deal with any dispute as the matter must go to arbitration.
What does s15 of the Arbitration Act 1996 say?
Parties are free to agree on the number of arbitrators.
What does the Act say about choosing the arbitrator?
Parties are free to agree on the procedure for appointing an arbitrator.
What does the Institute of Arbitrators provide?
Trained arbitrators for major disputes.
Who are arbitrators?
Often someone with expertise in the field of the dispute.
What is paper arbitration?
Where both sides submit points and relevant documents to the arbitrator.
How are witnesses used in arbitrations?
Witnesses can be called to give evidence under normal court procedures.
Who decides the date, time, and place of arbitration?
Decided by the parties in consultation with the arbitrator.
What is the decision made by the arbitrator called?
It is called an ‘award’ and is binding on the parties.
Is the award final?
The decision is final but can be challenged on grounds of serious irregularity or point of law.
What is Online Dispute Resolution (ODR)?
The resolution of disputes with the assistance of organizations via the Internet.
How does eBay use ODR?
If a dispute arises, buyers and sellers are encouraged to resolve it themselves; if not, eBay provides structured advice and a resolution service.
What is Resolver and what does it do?
A UK-based online facility that helps consumers raise complaints with suppliers and retailers.
What does Resolver cover?
It covers energy, telecoms, loan companies, restaurants, and more; the service is free.
What is the Financial Ombudsman?
Established in 2000 as the mandatory ADR body in the financial services sector.
What principle does the Financial Ombudsman work on?
A dispute is usually best resolved at the earliest possible stage.
What do the Financial Ombudsman’s case handlers attempt to do?
Facilitate an amicable resolution to the dispute.
What percentage of parties agree at the Financial Ombudsman at the first stage?
90%.
What can happen after an ombudsman’s determinations?
It can be accepted or rejected by a consumer; once accepted, it becomes binding.
How many disputes a year does the Financial Ombudsman resolve?
Half a million.
What are the vast majority of ODR services aimed at?
Disputes between businesses, many of which are international.
When was the online court proposed?
2016, with hopes to come into operation in 2020.
What is stage 1 of the online court?
A largely automated, interactive online process for identifying issues and providing documentary evidence.
What is stage 2 of the online court?
Conciliation and case management carried out by case managers.
What is stage 3 of the online court?
Resolution by a judge if the case is not resolved by stage 2.
What would the online courts allow?
Cases to be dealt with more quickly and at a lower cost.
Who put forward the proposal of the online courts?
Lord Briggs, following a report by the online dispute advisory group of the Civil Justice Council.
What did the report on online courts focus on?
Providing an affordable, accessible, and fair court-based dispute resolution service for low value claims.
What did the report say about the present system?
The present court system fails on many points and an online court would allow more people to access justice.
What is the problem with online procedures?
Not appropriate in all cases, especially where truth-telling is crucial.
What is the difference between ADR and the courts?
ADR is much cheaper, parties are in control, and it avoids bitterness.
What type of cases are civil courts involved in?
Cases where an individual or business’s rights have been infringed.
What are County Courts used for?
Claims for £100,000 or less; personal injury claims for £50,000 or less.
What are parties encouraged to do before entering court proceedings?
Parties are encouraged to try and negotiate and give information to each other to prevent the need for court.
What must parties complete before a claim is issued?
Parties must complete a pre-action protocol, which is a list of things that need to be done.
What happens if the pre-action protocol is not followed?
If not followed, the party may be liable for certain costs if they make a court claim.
What is the County Court used for?
Claims for £100,000 or less and personal injury claims for £50,000 or less.
What is the High Court used for?
Claims over £100,000 and personal injury claims for over £50,000.
What can someone do if they decide to use the County Courts?
They can choose to issue the claim in any of the 200 or so County Courts in the country.
What can someone do if they decide to use the High Courts?
They can go to one of the 20 District Registries or the main court in London.
What must the claimant issue?
A claims form called an N1.
What does the N1 involve?
It has a fee that varies; higher claims incur higher fees. For example, in 2017, the fee for a claim of up to £300 was £35.
How does the court office assist with the N1?
The court office provides notes on how to fill in the form, and people can also make a money claim online.
What can happen after the N1 is issued?
The defendant may admit to the claim and pay in full, do neither leading to an order in default, or wish to defend the claim.
What can the defendant do if they wish to defend the claim?
A) File N9 acknowledgment of service at court within 14 days and defence within a further 14 days. B) File defence within 14 days.
Who decides what track should be used for a case?
The District Judge in the County Court or the Master in the High Court.
What is used to help the judge decide on the track?
An allocation questionnaire is sent to both parties.
What is the Small Claims Track used for?
Disputes under £10,000 and personal injury claims of £1,000, with proposals to increase this to £5,000.
What is the Fast Track used for?
Disputes of £10,000 to £25,000.
What is the Multi-Track used for?
Cases over £25,000 or for complex cases under this amount.
What can happen if a case is on a complex point of law?
The judge can allocate the case to a higher value track or a lower value track.
Where are Small Claims Track cases heard?
In private, but can be heard in an ordinary court, allowing flexibility for the District Judge.
What type of training do District Judges receive?
They receive training in handling small claims cases, actively participating in proceedings.
What are parties encouraged to do in Small Claims Track?
They are encouraged to represent themselves and cannot claim costs for using a lawyer from the other side.
How are Fast Track cases dealt with?
The court sets a strict timetable for pre-trial matters, aiming for cases to be heard within 30 weeks, but often closer to 50 weeks.
How is the actual trial in Fast Track cases conducted?
Usually heard by a Circuit Judge in open court with a formal procedure, limited to one day and usually only one expert witness allowed.
What are Multi-Track cases?
Each case is managed by a judge from allocation to resolution.
What do Multi-Track cases involve?
Identifying issues early, encouraging ADR, managing procedural steps without court attendance, and fixing timetables.
How are Multi-Track cases managed?
Case management aims to keep costs low and ensure reasonable speed in hearings.
Why were tribunals first set up?
To provide a method for enforcing social rights, established in the second half of the 20th century.
What are four examples of rights enforceable through a tribunal?
- Right to a mobility allowance for disabled individuals. 2. Right to payment if made redundant. 3. Right against discrimination. 4. Rights of immigrants for political asylum.
Which Act reformed the tribunal system?
Tribunals, Courts and Enforcement Act 2007.
How many cases are dealt with on average through a tribunal?
600,000 cases.
What are the 7 types of tribunals?
- Social entitlement chamber. 2. Health, Education and Social Care Chamber. 3. War pensions and Armed forces Compensation Chamber. 4. General regulatory chamber. 5. Taxation chamber. 6. Land, property and Housing chamber. 7. Asylum and Immigration Chamber.
What tribunal operates separately from the other 7 types?
Employment tribunal.
What are the 4 chambers in the Upper Tribunal?
- Administrative Appeals Chamber. 2. Tax and Chancery Chamber. 3. Lands Chamber. 4. Asylum and Immigration Chamber.
Which court hears appeals from the Upper Tribunal?
Court of Appeal.
What is the normal make-up of a tribunal panel?
A tribunal judge and two non-lawyers with expertise in the relevant field.
Why do most people present their own case to the tribunal?
Funding for representation is limited, leading many to represent themselves.
What is the appeal route in tribunal cases?
- First tier tribunal. 2. Upper tribunal. 3. Court of Appeal. 4. Supreme Court.
How many judges are there in tribunals?
Nearly 200 judges.
How many lay members of tribunals are there?
3,600 lay members.
