ELS - Civil Legal Proceedure

Question 1

What is a Claimant

Answer 1

A person bringing action against another in the Civil Legal Proceedings.

Question 2

What is a Defendant

Answer 2

The person by whom an action is being brought against in the Civil Legal Proceedings.

Question 3

What are the Rules that govern the Civil Legal Process?

Answer 3

The Civil Procedure Rule 1998 (the “CPR”)

Question 4

What is the CPR?

Answer 4

The CPR are a set of rule that govern the amin types of civil cases one may encounter, for example, contract or tort.

Question 5

Where are Civil cases heard?

Answer 5

In either the High Court or the County Courts.

Question 6

How did the CPR come into existence?

Answer 6

The Report, Access to Justice 1996, by Lord Woolf highlighted a need for change. The CPR was drafted and came into force in 1998 after review of his report.

Question 7

What were the key findings of Lord Woolf’s report “Access to Justice 1996”.

Answer 7

The key findings were that there was no judicial responsibility for managing civil cases and cases were therefore unnecessarily complex, cost too much money, and took too long to resolve.

Question 8

What is the overriding objective of the CPR

Answer 8

The Courts shall deal with cases justly.

Question 9

What are 4 considerations that must be taken into account when the courts follow the CPR?

Answer 9

1) How to ensure that the parties are placed on equal footing (regardless of their financial situations) 2). How to deal with cases swiftly, fairly and cost effectively. 3) How to deal with cases in a Proportionate manner 4) What are the appropriate resources to allocate to a case?.

Question 10

Explain the concept of Proportionality.

Answer 10

It is a concept reflected throughout the CPR. It points out that the courts should manage cases activly, and restrict parties ability to conduct expensive, complex investigations or spend great amounts of money on appointing witnesses in relatively low value, straight forward cases.

Question 11

Give some examples of how the CPR allows the courts to actively manage cases?

Answer 11

a) They can fix time tables, b) make directions c) control what evidence is used.

Question 12

Since Woolf’s report and the enactment of the CPR, what actions are the parties strongly advised to partake in?

Answer 12

The parties are strongly encouraged to settle out of court. They are advise to use ADR (Alternative Dispute Resolution), Pre Action Protocall etc.

Question 13

What are the steps involved, and information gathers pre-action of a civil case?

Answer 13

Claimant seeks legal advise, determines what the rememdy is, what the value of the claim is, how the court fees will be paid, what the nature of the claim is, what evidence needs to be collected, which court the claim will be filed at and notification must be sent to the defendant.

Question 14

where do most civil litigation take place?

Answer 14

most start at the county court.

Question 15

What Part of the CPR are most claims issued under?

Answer 15

Part 7

Question 16

List the steps involved in issuing a claim under Part 7 of the CPR.

Answer 16

1) Claimant submits the claim to the court. 2) The Claim is served to the defendant or their solicitor. 3) The defendant responds to the claim 4) An allocation questionnaire is sent out, filled in and returned to the court.

Question 17

What are the different options a defendant has in responding to a claim?

Answer 17

1) File and Serve and Admission. 2) file a defence 3) admit some and file a defence for others 4) file a defence and make a counter claim. 5) File defence and make a claim for contribution or indemnity against another person 6) file an acknowledgement of service.

Question 18

What is a Default Judgement?

Answer 18

If a defendent fails to file a defence or acknowledgement within the required time, the claimant may apply for a Default Judgement to be made. Additionally, should a claimant fail to file a defence against the counter claim from the defendant, the defendant can file a request for a Default Judgement. Thsi is done under Part 12 of the CPR.

Question 19

What is a Summary Judgement?

Answer 19

If either party beleives that the other party has no valid claim or defence, then that party can request that the claim or defence be struck off, and a summary judgement be entered in their favour.

Question 20

what are Practice Directions?

Answer 20

A set of rules and procedures which supplement and support parts of the CPR. They inform individuals what is expected of them by the courts and what will happen if they don’t follow the rules.

Question 21

Which courts deal with civil cases?

Answer 21

County courts, Hight Courts and the Magistrates courts ( Family Proceedings Court).

Question 22

What are the Tracks

Answer 22

Each civil case is allocated to one of three tracks. Small claims track, Fast Track or the Multi Track.

Question 23

Explain the set up of the County Courts

Answer 23

There are over 200 County Courts in England and Wales. Most work carried out by district judges. Most civil cases start at the county courts.

Question 24

What are the Three Divisions of the High Court=

Answer 24

The Queen’s Bench Division, The Chancery Division and the Family Divisions

Question 25

What is the QBD?

Answer 25

The Queens Bench Division is a court which deals with Civil Cases relating to contract and tort. It is subdivided into the Commercial Court and the Admiralty Court.

Question 26

What is the Chancery Division?

Answer 26

The Chancery Division is a part of the High Court. It deals with cases involving sale of land, mortgages, trusts and bankruptcy,

Question 27

what kind of Remedies are available should the courts decide in the claimants favour?

Answer 27

Damages may be rewarded, as a common law rememdy, Specific Performance may be rewarded in Equitable situations and and injunction, which is the order to do or stop doing something.

Question 28

What happends if the there is non compliance on the part of the person the judgement was made against?

Answer 28

If there is non compliance, it is up to the claimant to apply to the courts for enforcement.

Question 29

What is a committal order?

Answer 29

A committal order can be filed when there is no money involved in the remedy. continued non peformance is threatened with prison time.

Question 30

Explain the possible orders which can be filed for non compliance to a decision, under Part 70 to 74 of the CPR.

Answer 30

fieri facia - can be applied for with the high courts - Goods may be siezed and sold to pay.
Warrent of Execution - same as fieri facies, but to the county court. 3) Earnings order - order forthe debitors employer to pay directly from their salary. Third Party debt order - order the bank to release the debtors funds to pay, charging order - order of sale so that the judgement debtors property is sold.

Question 31

What kind of order can be applied for under Part 71 of the CPR?

Answer 31

The creditor can apply for an order which requires the debtor to share under oath their financial situation.

Question 32

What part of the CPR allows for Appeals in the civil court process?

Answer 32

Part 52 of The CPR allows for appeals.

Question 33

When is permission to appeal given?

Answer 33

a) the court considers that the appeal would have real success: e.g. the judge was wrong in law. or b) where there is some compelling reason to why the appeal should be heard.

Question 34

Who usually hears a civil appeal?

Answer 34

Civil appeals are usually handled by the next JUDGE in the hierarchy, more often than the next court.

Question 35

what is a leapfrog appeal?

Answer 35

If a case raises a very important point of principle, practice or law, and there is some compelling reason, then the appeal can be heard by the appeals court.