English Legal System Week 2 Flashcards

Question

Civil Litigation Procedure - Step 7

Answer 1

Step 7 = Executing the Judgement The losing party will be expected to pay the sums due by a date set by the court If the defendant doesn't pay then the winning side may have to apply to the court to enforce the judgement The court has the power to award a number of orders: 1) Distraint Order = Power to seize company assets 2) Charging Order = Debt is secured against a home or other property 3) Attachment of Earnings = Money taken directly from wages to pay debt 4) Third Party Debt Order = Freezes money held by a third party (bank) then the money owed is paid directly from the bank to the winning party 5) Insolvency Proceedings = If a debt is £750 or more, the winning party can start insolvency proceedings against the debtor. Company is wound-up and any debts paid.

Answer 2

Going court is costly and time consuming and a party may prefer to use an alternative method Known as Alternative Dispute Resolution (ADR) There's a number of alternative methods of dispute resolution including arbitration, ombudsman, mediation and conciliation Some cases disputes are dealt with tribunals rather than court

Answer 3

Arbitration is the procedure by which the parties refer their disputes to a third party or parties to be resolved rather than taking their dispute to a court Parties agree to be bound by decision of arbitrator Arbitrator decides dispute according to the law but outside the confines of the court and normal court procedure In commercial world, multinational corporations and other businesses will prefer to refer a dispute to arbitration rather than take court action, not only because of the convenience, speed and cost but also to ensure a continuing relationship with each other There's a degree of interdependency between businesses and good relationships may be damaged When drafting legal contracts, an arbitration clause is often included. It states that in the event of a dispute, the parties will refer the matter to arbitration to find a solution

Answer 4

Arbitrator will be an expert and have knowledge of the field in which the dispute arose Arbitration hearings are private so outsiders don't get access to any sensitive information and parties to the arbitration don't run the risk of any damaging publicity arising out of reports of the proceedings Proceedings are quicker than court action Proceedings are less formal than a court case and can be scheduled more flexibility than court proceedings Costs are lower but if one party makes use of available grounds to challenge arbitration award, prior costs of arbitration will have been largely wasted Cost of arbitration and use of specialist arbitrators shouldn't be underestimated

Answer 5

Arbitrators don't have the powers of a judge so can't insist evidence is produced Lack of legal knowledge Bargaining powers of the parties are important. Commercial arbitration works best when the parties are in a position of equal bargaining power

Answer 6

Section 1 of arbitration act 1996 states that it's founded on following principles; - Object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without necessary delay or expense - Parties should be free to agree how their disputes are resolved, subject only to such safeguard as are necessary in the public interest - In matters governed by this part of the act, the court shouldn't intervene expect as provided by this part

Answer 7

Dispute falls into either legal, banking, insurance or financial services then the ombudsman service can investigate and resolve problems

Answer 8

Conciliation is less formal than mediation Conciliatory assists the parties to explore all possible solutions for settling the dispute and points out positive and negative consequences of the different solutions In mediation, the parties themselves determine their own solution but in conciliation Conciliator can suggest different opinions to the parties and if conciliation fails, parties may bring their disputes to court

Answer 9

Mediation is conducted in private at a time and place to suit the parties Mediator is appointed by the parties and is trained as a mediator May or may not be legally qualified. Mediator acts as a facilitator through which the disputing parties can communicate and negotiate Mediators can move between parties without parties meeting - communicate through mediator Mediator can operate in presence of parties Downside of conciliation and mediation is that an outcome isn't guaranteed so it's possible parties will go through the time and expense of mediation or conciliation only to find that they can't agree on a suitable solution Going court can take longer and be more expensive

Answer 10

A tribunal is overseen by a tribunal judge who's legally qualified Assisted by 2 people who have specialist knowledge in area of dispute Tribunal hearings can cover disputes relating to tax, immigration, socials security, entitlement and employment disputes Employment tribunal is the most relevant Hear disputes relating to unfair dismissal, redundancy, discrimination or appeals to the decisions of the health and safety executive Appeals heard in Employment Appeals Tribunal (EAT)

Answer 11

Have a strong case, might not be worth suing if the other party doesn't have the means to pay (man of straw) Company may have gone into liquidation and doesn't exist anymore Bringing an action can be expensive so a party interested in starting an action might not gain as much as they think Losing party may be liable for legal fees of winning party

Answer 12

Due to court fees, time and effort, a lot of cases are solved outside the court process Court process encourages settlement outside a trial

Answer 13

Aren't binding on others Crown Courts can't create precedent and their decisions can only be persuasive County Courts and Magistrates don't create precedents

Answer 14

When a judge hears a case, he delivers judgement Judgement explains the reason for the decision and anything else the judge feels is relevant Important part of decision is called ratio decidendi (reason for decision) It's important as this is part of the judgement which is binding on later cases

Answer 15

Ratio decidendi is part of a judgement that's binding Obiter Dicta (comments by the way) can be found in a judgement and don't form part of the binding ratio of a case May cover hypothetical scenarios on how the law is to be applied in the future

Answer 16

Yes but only with judgement from lower courts Court may decide a decision was decided incorrectly as law hasn't been applied properly The decision of lower court is said to be reversed Overruling occurs where an appeal court believes a precedent no longer represents the law, in this case the precedent is overruled with a new precedent Distinguishing allows a court to avoid following a previous decision by declaring the facts before it as significantly different enough for it not to be followed. If they distinguish their case from a previous case it means they don't have to follow a particular precedent

Answer 17

Provides certainty to the law Cases are decided on a like basis and aren't subject to whim of individual judge deciding the case Lawyer can predict the outcome of a particular legal question by looking at what's been decided before Means the law can be flexible Keeps law on a practical level - real solutions to real problems Can be quicker than waiting for parliament to legislate Can save litigants money as they can predict an outcome

Answer 18

Courts can distinguish cases which can lead to some distorted applications Certainty mentioned above can make the law rigid So much case law that it can be hard to find right precedent Law is developed in a haphazard way Judges aren't democratically appointed and law making by judges conflicts with parliamentary sovereignty

Answer 19

When resolving legal disputes, the court system is always the focus but it's not always the most effective way of deciding disputes Court system has a winner and a loser and that doesn't help those who have enjoyed a good working relationship or for those who wish to continue a good relationship Felt the court system creates conflict between parties whereas ADR works towards a compromise