Civil Courts & Forms Of Dispute Resolution Flashcards
Explain how dispute can be resolved through employment tribunals
- handle discrimination & unfair dismissal
- C submit claim form, Gov contacts ACAS
- Tribunals formal with witnesses
- trade union have lawyers paid for
- 1 employment judge (binding decision)
- legal errors/unfair bias can go to EAT can further appeal after to CoA
Describe types of cases heard by civil courts and how these can be appealed (without appeals)
Courts of first instance : country & high
- county (district/circuit judge) deal most civil cases- jury used if defamation, malicious prosecution
- HC 3 Div QBD (judge/jury 12) deals contract & tort over £100,000 or PoL
- special administrative court judicial review
- Chancery Div (judge) financial wills, mortgages
- special Companies court (dissolution & bankruptcy)
- Family Div (judge) family cases with important PoL or under Hague convention
- most family cases heart by separate family court created by Crime and Courts Act 2013
Describe type of cases heard by civil courts and how they can be appealed (appeal part)
Country heard by district appeal= circuit judge County Court
County heard by circuit= high court
Can further appeal after to CoA s55 Access to Justice Act 1999 says only if case deals with PoL/compelling reason
If starts HC, given leave to appeal CoA and second appeal goes to SC
- can leapfrog from high to SC
- Criminal Justice & Courts Act 2015 allows if public/sufficient importance
Process civil case going to court pt1
Pre trial procedure which is steps party should take before going to court
- case starts in county if under £100,000 PD £50,000 PI
- fill N1 form to start claim or make online claim (has details, amount & court fee between £35&£10,000)
- to claim in HC must go to district registry or HC in London
- D has 14 days to respond, they can: accept liability, accept partial, deny, or counter claim. Must submit N9 or defence
- failure to do in 14 days auto accept liability
- if D disputes it will go to a track
- county court district judge decides track, HC ‘the master’ decides track
- decision based on complexity and value of claim
Process civil case going to court pt2 (tracks)
Small claims track (up to £10,000 PD, £1000 PI)
- usually county court district judge asks parties to explain points without lawyer
Fast track (£10,000-£25 PD, £1000-£25 PI)
- county court circuit judge supposed to take 30 weeks, actually around 50
- trial lasts 1 day and expert witness limit 1
Multitrack (£25,000-£100,000 PD, £25,000-£50 PI) anything over goes to HC
- heard county court, judge will identify issues and encourage alternative dispute resolution
- deals with procedure without calling parties into court and makes timetable
- case then go to trial if not and can appeal if necessary
Describe arbitration
Parties to a dispute agree to have arbitrator hear their case and make a binding decision
- S1b Arbitration Act 1996 parties free to decide process unless goes against interest of justice
- parties choose arbitrator (best expert/lawyer if issue on PoL
- institute of arbitrators provide expert arbitrators
- S15AA must be odd number arbitrators, if parties cannot decide court will appoint one
- hearing can be conducted however as long as doesn’t go against interest if justice
- hearing oral or paper
- arbitrator makes binding decision in writing (can be appealed under S68AA if serious irregularity in process or PoL
- Scott & Avery clauses businesses have to agree to use arbitration
Describe mediation & conciliation
Mediation- parties in a dispute have neutral 3rd party pass messages (doesn’t take sides can be asked to give evaluations of merits on each side)
- used by companies used to negotiating & want to continue working together
- necessary for family disputes before going to court unless domestic violence
- decision not binding
- services like CEDR helps companies
- CEDR resolved 10,000 disputes 2016
- smaller services Kent Family Mediation (for local/specific)
Conciliation similar but conciliator allowed to make suggestions on what to decide
- power still with parties (they make decision) but not binding
- services ACAD provide professional conciliators
- trained & able to give impartial advice about legal position and what court would decide
- allows favourable agreement without court
Describe methods of ADR
Negotiation two parties discuss issue try to come to agreement (with or without lawyers) decision not binding
- mediation has neutral 3rd party pass messages (not meant to make suggestions) but can be asked to give evaluations or merits
- necessary for family disputes before court unless domestic violence
- decisions not binding & professional services such as CEDR can help
- conciliation similar but allowed to make suggestions on what to be decided (power still with parties)
- not binding & ACAS offers impartial advice about legal position of parties
- Arbitration- parties appoint 3rd party to hear case and make binding decision (under Arbitration Act 1996)
- S15 must be odd number of arbitrators
- S1b can conduct process however they like
- orally with witnesses or on paper
- decision made in writing but can be appealed if serious irregularity in process or PoL S68
- Scott & Avery Clauses
S/W: ADR cheaper than court
Negotiation is 2 parties talking, arbitration has no court fees, court has lengthy pre trial procedure
Eg. CEDR estimated saved 2.8 bill in case management time through mediation
- reduced costs and time
S/W: ADR no access to legal aid
No legal aid available for ADR/tribunal which can lead to unfair trial where one party faced an uphill battle as they can’t afford a lawyer
- court system can provide legal aid for those unable to afford a lawyer
- can lead to unbalanced playing field and unfair trial
S/W: ADR less adversial
Negotia, mediat, concil allows parties to come to agreement between themselves where everyone wins
- in court one party wins case and the other loses and based on legal principle rather than business ideas
- public trials may be bad for business and ADR keeping good relationship is good for business
S/W: ADR contingent on parties co operating
Nego, concill, mediat all depend on working together to some extent (process of arbitration, arbitrators) and come to a decision altogether
- court procedure already in place so can still work with hostile parties
- court system works for a wider variety of circumstances of relationship
S/W: ADR simple and controlled by parties
Court system is lengthy and complicated (process differs depending on type of dispute, complex procedures, pre-trial, PoL) may need lawyer to understand process
- ADR parties can choose when/how to negotiate, choose arbitrator/mediator, choose process of arbitration
- don’t need lawyers to understand ADR which means it’s more accessible
S/W: court decision binding and clear routes of appeal
Nego, concill, mediat not binding so many solution may not be adhered to
- arbitration app real routes are limited to serious irregularities in process and unforeseen legal issues
- courts have binding decisions, clear and several routes of appeal
- guarantee of solution and can argue with solution and appeal easier
S/W: decision not made by legal expert ADR
Arbitration can choose any person to make a binding decision which may be dangerous as lead to poor decisions
- less likely to have poor binding decisions with judge’s expertise
- court can excersize more power and give more money (favourable for winning party)
