English Legal System Week 2 Flashcards
Structure of English Court
Supreme Court
Court of Appeal
High Court
Crown Court
County Court
Magistrates Court
Lowest Level Court
Magistrates Court and County Court which deals with the less serious criminal and civil cases
Middle Tier Court
Crown Court which deals mainly with criminal issues and High Court dealing with civil issues
Top Tier Court
Supreme Court which is the ultimate appeal court for both criminal and civil cases in England, Wales and Northern Ireland.
Info about the structure
Within this structure, there’s no complete separation of criminal and civil courts, courts that hear cases in full for the first time (courts of first instance or courts of original jurisdiction)
Courts that hear cases on appeal from other courts are known as Appeal Courts
Courts in England and Wales form a system of hierarchy meaning that certain courts are superior to others
State Decisis
Doctrine of Binding Precedent:
- In deciding a case, an english judge doesn’t look at earlier decisions of judges in similar cases for guidance
- It’s actually bound to apply the law decided by those earlier cases, if the earlier cases were heard in a court of superior status and involve similar facts
Create certainty in our laws - Binding Precedent
Decisions made in higher courts have to be followed by public
Magistrates Court - Resolving Legal Disputes
Part of the criminal court system
Lowest criminal court and 95% of criminal cases are concluded here
Offences that are classed as either summary or triable either way start in this court
They cover crimes such as driving without insurance, careless driving and using threatening, abusive or insulting words and behaviour
Triable Either Way (Hybrid Offence)
May be tried in either the Magistrates or the Crown Court
These are offences that ca either be serious or trivial - mid range offences such as theft and burgulary
Seriousness of case depends on the facts, for example, the offence of theft may be the theft of £500,000 from an employer or could be minor where an individual steals £30 jacket from a shop
If offences are triable either way, it’s first brought before the magistrate court which will decide which is the most suitable venue for the trial of the case
Magistrates
If Magistrates decide that the case before them is serious, they can send the case for trial at the Crown Court.
Magistrates may believe the case should be heard as a summary offence in Magistrates Court
Magistrates are volunteers and aren’t legally qualified
Need to rely on clerk of the court as they have no legal training
Clerk of court is legally qualified
Clerk advises them on the law, sentencing and procedure
Magistrates can fine and imprison offenders. If the Magistrates believes a more severe punishment is needed they can refer the defendant to the crown court for sentencing
Magistrates can issue a community sentence such as unpaid work in the community or a ban from driving or keeping an animal
Magistrates can choose to combine sentences and may issue a fine and also require an offender to undertake community service
Criminal cases are reported as R v Smith (R = Crown) so its the Crown against Smith
Crown Court - Resolving Legal Disputes
The crown court is a criminal court and an appeal court and it hears more serious cases.
Can also hear appeals from Magistrates Court
Hears indictable offences - rape and grievous bodily harm as well as homicide (murder and manslaughter)
Serious triable either way offences:
- In indictable and serious triable either way offences, if the defendant not guilty, a jury will decide the guilt or not of the defendant
- Trial is usually heard by a judge and jury of 12 ordinary people. The judge advises the jury on the law and the jury decides whether the defendant is guilty or not
Sentencing cases referred from the magistrates court
Legal aid and bail applications
Appeals - a defendant found guilty in the Magistrates’ Court can appeal against their conviction or sentence in the Crown Court
Jury Decisions
Jury decides if someone’s innocent or guilty
Jury decides on sentence
Crown Court is a criminal court and an appeal court
Death by dangerous driving = heard in Crown Court as it’s serious
County Court - Resolving Legal Disputes
Court is a civil court - deals with non criminal cases
Civil cases reported in the names of parties = Smith v Jones
Hears cases relating to contract disputes, tort - for example, individuals seeking compensation for injuries, recovery of land or debts (someone might owe debt to business)
Any cases heard in County Court can also be heard in High Court
High Court hears the complex, costly and specialist cases
High Court - Resolving Legal Disputes
Main court is situated at Royal Courts of Justice in London but cases are heard in other cities
Divided into 3 division
- The King’s Bench Division - Covers disputes relating to personal injury, negligence, breach of contract
- The Chancery Division - Deals with matters relating to trusts, mortgages, finance and administrations of estates of deceased persons, company law, partnerships and bankruptcies
- The Family Division - Covers international child abduction and forced marriages
High Court as an Appeal Court
High Court is also an appeal court
Judges in these courts are bound by decisions of the supreme court and the court of appeal but not by decisions made at High Court Level
Each of the three divisions of the high court has a divisional court where two judges sit to hear appeal cases
When these courts are acting as appeal courts they’re called a divisional court of the high court
Must follow the decisions of Supreme Court and the Court of Appeal`
Court of Appeal - Resolving Legal Dispute
Court has two divisions - civil and criminal division
Usually three judges sit but it can go up to 5 or more in important cases
Civil Division
The court hears appeals from lower civil courts (county courts, high court)
Also hear appeals for some tribunals - employment appeals tribunal
Civil division is bound by decisions of the supreme court and its decisions bind all the courts that are inferior
Criminal Division
Courts hear appeals from Crown Court - has heard triable either way offence suitable for Crown Court or one that’s an indictable offence
Criminal division is bound by the decision of the Supreme Court and its decision binds all the courts that are inferior
Supreme Court
Replaced House of Lords in 2009
Is an Appeal Court and is the highest appeal court
Hear cases where a point of law of general public importance is involved
Hear appeals in both civil and criminal matter
Its decisions are binding on all courts below and isn’t bound to follow its decision
Cases are heard by a bench of 3 to 7 judges
Civil Litigation Procedure - Step 1
Step 1 = Issue a letter of claim
Before a civil case is commenced, the claimant must send a letter before claim setting out the allegations and defendant must reply within a reasonable time
Intended to encourage parties to exchange information and settle disputes fairly or at least discover all information and carry out investigations before going court
Different protocols for different types of cases
–> some cases, for example, a personal injury or clinical negligence. there are also pre action protocols which must be observed
Civil Litigation Procedure - Step 2
Step 2 = Issue a claim
If parties fail to settle the issue, person bringing the action (claimant) fills in a claim for and particulars of claim setting out the details of the claim including the amount and a concise statement of facts which the claimant relies upon
Form is submitted to the court which processes it and serves a copy of it on defendant
Civil Litigation Procedure - Step 3
Step 3 = Defendant accepts or defends claim
On receipt of a claim form with particulars of a claim, a defendant must acknowledge receipt within 14 days and either admits the claim or puts in a defence within 28 days
Defence must state which of the allegations in particulars of the claim the defendant denies, giving reasons and which allegations defendant admits
Should a defendant receive a claim form and ignore it, after 14 days the claimant can enter judgement against defendant for the sum specified in the claim form
Civil Litigation Procedure - Step 4
Step 4- Case is allocated to relevant track
There’s 3 (small, fast and multi) tracks within civil law system and which track you follow depends on your claim
Small Claims Track
- Claims upto £10,000
- Heard in the County Court
- Simple procedure and no costs can be claimed from the other side
Fast Track Claims
- Between £10,000 and £25,000
- Timetable is set for the steps to be taken to simplify the case for the court and to keep costs to a minimum
- Heard in County Court
- Costs are paid by the losing part
Multi Track Claims
- Claims over £25,000
- More flexibility in how the case is managed
- Can be heard in the County or High Court
- Costs are paid by the losing party
Civil Litigation Procedure - Step 5
Step 5 = Interlocutory Stage
These stages are the pre trial stage
Judge may give each paty directions as to the steps to be taken to prepare for the trial
For example, parties must list the documents they intend to rely on in court or they may be asked to disclose expert report
Civil Litigation Procedure - Step 6
Step 6 = The Trial
Each party presents their legal arguments before the court
A civil case is heard in open court before a judge
Evidence is either by written documents which both sides have seen or by witnesses giving oral evidence and being cross - examined
Judge decides winner
Winners normally awarded damages (money) although if the order is to prevent someone doing something then an injunction might be more suitable
Civil Litigation Procedure - Step 7
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.
Alternatives to Going Court
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
Commercial Arbitration
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
Advantages of Arbitration
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
Disadvantages of Arbitration
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
More Alternatives to Going Court
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
Ombudsman Service
Dispute falls into either legal, banking, insurance or financial services then the ombudsman service can investigate and resolve problems
Conciliation
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
Mediation
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
Tribunal System
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)
Disadvantages of Civil Action
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
Out of Court Settlement
Due to court fees, time and effort, a lot of cases are solved outside the court process
Court process encourages settlement outside a trial
Decisions of Crown Court, County Courts and Magistrates Court
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
Importance of Ratio Decidendi
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
Persuasive Precedents
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
Can judgement be reversed, overruled or distinguished?
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
Is the doctrine of binding precedents (state decisis) a good idea or not? - Advantages
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
Is the doctrine of binding precedents (state decisis) a good idea or not? - Disadvantages
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
Conclusions
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
