H418/01 The legal system all AO1 for 8 and 12 markers Flashcards
Outline both of the following: the civil courts, including appeal courts, that can hear a civil claim for compensation and the process of mediation as an alternative method of dispute resolution. [8]
Since the Crime and Courts Act 2012 there has been a County Court in England and Wales sitting in nearly 500 locations. There is on high court bases in the Royal Courts of Justice in London. Civil courts deal with non-criminal matters, such as contract, tort and human rights issues. There are two civil courts of first instance: the county court, as mentioned and the high court.
The county Court deals with most civil claims. It’s main areas of jurisdiction are; all contract and tort claims, all cases for the recovery of land and disputes over equitable matters such as trusts up to the value of £350,000. Cases are heard by a circuit judges or district judge.
For routes to appeal, if the original decision was made by a District Judge in the County Court, an appeal will be heard by a single Circuit Judge of the same court. Alternatively, if the original decision was made by a Circuit Judge, the appeal is made to the high court. For example, if the claim is for Personal Injury, an appeal will be made to a judge of the QBD. An appeal can be made directly to the court of appeal if the case raises an important point of principle or practice and the COA agrees to this. S55 Access To Justice Act 1999 sets out second appeals are possible, but only under special circumstances.
The high court is the first instance for trials involving specific areas of law or claims over £15,000 or £50,000 for personal injury claims. The High court is also an appeal court, hearing appeals from the County Court, tribunals and magistrates court (family). QBD – biggest of the three divisions dealing with claims over £100,000 in contract and tort cases. The administrative court, a separate court within the division supervises the lawfulness of the conduct of local and national government of inferior courts and tribunals. Judicial review may also occur in this division. Chancery division – involves disputes in insolvency, mortgaged enforcement, intellectual property and probate. Family division – One judge hears cases involving children under Children Act 1989 about disputes amongst families over which country’s laws should apply and all international cases concerning family matters under the Hague Convention. The Crime and Courts Act 2013 created a separate family court within the division which deals with custodial issues, abuse in family and divorce.
An appeal from the High Court will be heard by te COA (civil division). A further appeal can be sent to the Supreme Court, but only if a point of general public importance is involved. Since 2015, and in rare cases, a ‘leapfrog’ appeal may be made from the High Court to the SC if there’s an issue of national importance.
A final appeal is possible for a case to be referred to the European Court of Justice under Article 234 of the Treaty Of Rome if a point of EU law is involved.
Mediation is a non-binding dispute resolution but more formal negotiation where a neutral third party known as the mediator attempts to resolve the issue between parties without giving their opinion. A mediator is acts as a facilitator, and an evaluation exercise aiming at ending the dispute. They are permitted to give their opinion on the merits so long as they are explicitly asked. S10 Children and Families Act 2014 encourages mediation between separated parents so long as they have attended a Mediation Information and Assessment Meeting (MIAM) before starting a court proceeding.
Including appeal courts, outline the civil courts that can deal with a claim for negligence and briefly describe the process of negotiation. [8]
Since the Crime and Courts Act 2012 there has been a County Court in England and Wales sitting in nearly 500 locations. There is on high court bases in the Royal Courts of Justice in London. Civil courts deal with non-criminal matters, such as contract, tort and human rights issues. There are two civil courts of first instance: the county court, as mentioned and the high court.
The county Court deals with most civil claims. It’s main areas of jurisdiction are; all contract and tort claims, all cases for the recovery of land and disputes over equitable matters such as trusts up to the value of £350,000. Cases are heard by a circuit judges or district judge.
For routes to appeal, if the original decision was made by a District Judge in the County Court, an appeal will be heard by a single Circuit Judge of the same court. Alternatively, if the original decision was made by a Circuit Judge, the appeal is made to the high court. For example, if the claim is for Personal Injury, an appeal will be made to a judge of the QBD. An appeal can be made directly to the court of appeal if the case raises an important point of principle or practice and the COA agrees to this. S55 Access To Justice Act 1999 sets out second appeals are possible, but only under special circumstances.
The high court is the first instance for trials involving specific areas of law or claims over £15,000 or £50,000 for personal injury claims. The High court is also an appeal court, hearing appeals from the County Court, tribunals and magistrates court (family). QBD – biggest of the three divisions dealing with claims over £100,000 in contract and tort cases. The administrative court, a separate court within the division supervises the lawfulness of the conduct of local and national government of inferior courts and tribunals. Judicial review may also occur in this division. Chancery division – involves disputes in insolvency, mortgaged enforcement, intellectual property and probate. Family division – One judge hears cases involving children under Children Act 1989 about disputes amongst families over which country’s laws should apply and all international cases concerning family matters under the Hague Convention. The Crime and Courts Act 2013 created a separate family court within the division which deals with custodial issues, abuse in family and divorce.
An appeal from the High Court will be heard by te COA (civil division). A further appeal can be sent to the Supreme Court, but only if a point of general public importance is involved. Since 2015, and in rare cases, a ‘leapfrog’ appeal may be made from the High Court to the SC if there’s an issue of national importance.
A final appeal is possible for a case to be referred to the European Court of Justice under Article 234 of the Treaty Of Rome if a point of EU law is involved.
Negotiation is potentially the quickest and cheapest method of dispute resolution, if the parties can come to an agreement, they may decided to take the step of instructing a solicitor, in which the solicitor will negotiate the settlement. It would be suitable for disputes over; noisy neighbours, returning faulty goods top shops and receiving a poor service from a tradesman.
Including appeal courts, outline the civil courts that can deal with a claim for negligence and briefly describe the process of Conciliation. [8]
Since the Crime and Courts Act 2012 there has been a County Court in England and Wales sitting in nearly 500 locations. There is on high court bases in the Royal Courts of Justice in London. Civil courts deal with non-criminal matters, such as contract, tort and human rights issues. There are two civil courts of first instance: the county court, as mentioned and the high court.
The county Court deals with most civil claims. It’s main areas of jurisdiction are; all contract and tort claims, all cases for the recovery of land and disputes over equitable matters such as trusts up to the value of £350,000. Cases are heard by a circuit judges or district judge.
For routes to appeal, if the original decision was made by a District Judge in the County Court, an appeal will be heard by a single Circuit Judge of the same court. Alternatively, if the original decision was made by a Circuit Judge, the appeal is made to the high court. For example, if the claim is for Personal Injury, an appeal will be made to a judge of the QBD. An appeal can be made directly to the court of appeal if the case raises an important point of principle or practice and the COA agrees to this. S55 Access To Justice Act 1999 sets out second appeals are possible, but only under special circumstances.
The high court is the first instance for trials involving specific areas of law or claims over £15,000 or £50,000 for personal injury claims. The High court is also an appeal court, hearing appeals from the County Court, tribunals and magistrates court (family). QBD – biggest of the three divisions dealing with claims over £100,000 in contract and tort cases. The administrative court, a separate court within the division supervises the lawfulness of the conduct of local and national government of inferior courts and tribunals. Judicial review may also occur in this division. Chancery division – involves disputes in insolvency, mortgaged enforcement, intellectual property and probate. Family division – One judge hears cases involving children under Children Act 1989 about disputes amongst families over which country’s laws should apply and all international cases concerning family matters under the Hague Convention. The Crime and Courts Act 2013 created a separate family court within the division which deals with custodial issues, abuse in family and divorce.
An appeal from the High Court will be heard by te COA (civil division). A further appeal can be sent to the Supreme Court, but only if a point of general public importance is involved. Since 2015, and in rare cases, a ‘leapfrog’ appeal may be made from the High Court to the SC if there’s an issue of national importance.
A final appeal is possible for a case to be referred to the European Court of Justice under Article 234 of the Treaty Of Rome if a point of EU law is involved.
Conciliation is a form of mediation where a third party is active in raising ideas for compromise between the parties in disputes. The conciliator has no authority to seek evidence of call witnesses. In industrial disputes the Advisors Conciliation and Arbitration Service (ACAS) can give an impartial opinion on the legal position. The British Vehicle Renting and Leasing Association is a specific conciliation service set up to resolve disputes between individuals and renting companies.
Describe the routes of appeal in civil cases [8] – 2021 paper
There is a possibility to appeal against the decision in County or High Court judgements. A party may choose to appeal where they are dissatisfied with the courts decision of which there may be an error of law, fact or the overall procedure is unfair.
If the original decision was made by a District Judge in the County Court, an appeal will be heard by a single Circuit Judge of the same court. Alternatively, if the original decision was made by a Circuit Judge, the appeal is made to the high court. For example, if the claim is for Personal Injury, an appeal will be made to a judge of the QBD. An appeal can be made directly to the court of appeal if the case raises an important point of principle or practice and the COA agrees to this. S55 Access To Justice Act 1999 sets out second appeals are possible, but only under special circumstances.
An appeal from the High Court will be heard by te COA (civil division). A further appeal can be sent to the Supreme Court, but only if a point of general public importance is involved. Since 2015, and in rare cases, a ‘leapfrog’ appeal may be made from the High Court to the SC if there’s an issue of national importance.
A final appeal is possible for a case to be referred to the European Court of Justice under Article 234 of the Treaty Of Rome if a point of EU law is involved.
Explain how civil cases are allocated to the three tracks. [8]
The decision on which track to use is made by the District Judge in the County court or the Master Procedural Judge in the High Court. To assist the judge, both partis are sent an allocation questionnaire. The value of the claim plays apart in which court it till end up. For a personal injury claim, the pre-trial procedure goes as follows; letter of claim, D has 3 months to investigate and admit liability or explain to C why liability is denied, parties agree an expert witness. If either party doesn’t comply, they can be penalised when it comes to the issue of paying the costs at the cases conclusion. The service will allocate the claim to the most appropriate track: small claims track for disputes under £10,000 or PI for less than £1,000. Fast track for claims between £10,000 and £25,000. If your case is allocated to the fast track, the court will send you notice of the trial date no later than 21 days before the trial is due to start. Or multi-track for claims exceeding £25,000 and not more than £50,000. If it is though necessary, such as where there is a complex point of law involved, the judge can allocate a case to a track that normally deals with claims of a higher value. Alternatively, if the parties agree, the judge can allocate a case to a lower value track.
Describe the pre-trial procedure for civil claims [8]
There are currently 16 separate pre-action protocols and the one that applies will depend on the claim type. First, parties try to negotiate the dispute through ADR. Parties are encouraged to disclose information to each other following a pre-action protocol. This may be done in a plea before venue such as a pre-trial hearing in the Magistrates Court. Here, D is also asked whether they plea guilty or not guilty to the offence. If guilty, the case proceeds to a sentencing hearing. If not guilty, the magistrates will carry out mode of trial proceedings. For a personal injury claim, the pre-trial procedure goes as follows; letter of claim, D has 3 months to investigate and admit liability or explain to C why liability is denied, parties agree an expert witness. If either party doesn’t comply, they can be penalised when it comes to the issue of paying the costs at the cases conclusion.
In mode of trial proceedings, mags decide on the most appropriate court to try the case. They’ll consider; sentencing powers, seriousness of the offence and whether D has any prior convictions.
If the Magistrates accept summary jurisdiction the D is given the choice of court.
N1 and N9 forms.
Explain the pre-trial procedure for triable either way offences [8] – 2022 paper
First, parties try to negotiate the dispute through ADR. Parties are encouraged to disclose information to each other following a pre-action protocol. This may be done in a plea before venue such as a pre-trial hearing in the Magistrates Court. Here, D is also asked whether they plea guilty or not guilty to the offence. If guilty, the case proceeds to a sentencing hearing. If not guilty, the magistrates will carry out mode of trial proceedings.
In mode of trial proceedings, mags decide on the most appropriate court to try the case. They’ll consider; sentencing powers, seriousness of the offence and whether D has any prior convictions.
If the Magistrates accept summary jurisdiction the D is given the choice of court.
N1 and N9 forms.
Describe the role of the three divisions of the High Court [8] – 2019 paper
The high court is the first instance for trials involving specific areas of law or claims over £15,000 or £50,000 for personal injury claims. The High court is also an appeal court, hearing appeals from the County Court, tribunals and magistrates court (family).
QBD – biggest of the three divisions dealing with claims over £100,000 in contract and tort cases. The case is heard by one judge who does provide a right o a jury trial (12 members) for fraud, liberal or malicious prosecution. The administrative court, a separate court within the division supervises the lawfulness of the conduct of local and national government of inferior courts and tribunals. Judicial review may also occur in this division.
Chancery division – involves disputes in insolvency, mortgaged enforcement, intellectual property and probate. There’s a dedicated company court within the division. The case is heard by one judge and never a jury.
Family division – One judge hears cases involving children under Children Act 1989 about disputes amongst families over which country’s laws should apply and all international cases concerning family matters under the Hague Convention. The Crime and Courts Act 2013 created a separate family court within the division which deals with custodial issues, abuse in family and divorxce.
Discuss the disadvantages of using Civil Court [12] – 2019 paper
Negative counter – s55 Access to Justice Act states an appeal can only provide if (a) the original court agrees and (b) the appeal court agrees to hear the appeal. This provides uncertainty in that there is no guarantee of winning a case. The person losing the case may have to pay the other sides costs. This makes it difficult to know how much a case is going to cost in advance. Delays in cases can also add to uncertainty and cost.
Positive point ++ – there is an appeals process with specific appeal routes from decisions made in the courts, so, if the claimant is not happy with the decision, it is usually possible to appeal against it.
Negative counter - - complicated process in that there may be compulsory steps to be taken before a case is started out in court. For example, parties may use pre-action protocols and give other parties information. Forms that need to be filled are set out in the Civil Procedure Rules. All of this makes it complicated for a person to take a case without legal advice and help. Claimant issues an N1 form. D responds with N9 form within 14 days.
Positive point ++ - enforcement of the courts decisions is easier as any decision made by a court can be enforced through the courts.
Negative counter - - the costs of taking a case to court are often more than the amount claimed. In the High Court, the cost can be hundreds of thousands. For smaller claims, the costs are often more than the amount claimed. In 2017 a claim of up to £300 was £35. £10,000 for £200,000.
Positive point ++ - the trial is conducted by a legal expert with the decision being made by a judge who is an experienced qualified lawyer.
Negative counter - - it’s pointless being treated fairly if you will never get the case to court. There are many preliminary stages to go through that add to the length of cases. Even after the case is set down for hearing at court, there is a long wait – usually a year for larger claims. The total of all this means the case may not be finished for years.
Positive point ++ - the process is fair in that everyone is treated alike. The judge is impartial.
Discuss the advantages of using Civil Courts trial [12]
Positive point ++ – there is an appeals process with specific appeal routes from decisions made in the courts, so, if the claimant is not happy with the decision, it is usually possible to appeal against it.
Negative counter – s55 Access to Justice Act states an appeal can only provide if (a) the original court agrees and (b) the appeal court agrees to hear the appeal. This provides uncertainty in that there is no guarantee of winning a case. The person losing the case may have to pay the other sides costs. This makes it difficult to know how much a case is going to cost in advance. Delays in cases can also add to uncertainty and cost.
Positive point ++ - enforcement of the courts decisions is easier as any decision made by a court can be enforced through the courts.
Negative counter - - complicated process in that there may be compulsory steps to be taken before a case is started out in court. For example, parties may use pre-action protocols and give other parties information. Forms that need to be filled are set out in the Civil Procedure Rules. All of this makes it complicated for a person to take a case without legal advice and help. Claimant issues an N1 form. D responds with N9 form within 14 days.
Positive point ++ - the trial is conducted by a legal expert with the decision being made by a judge who is an experienced qualified lawyer.
Negative counter - - the costs of taking a case to court are often more than the amount claimed. In the High Court, the cost can be hundreds of thousands. For smaller claims, the costs are often more than the amount claimed. In 2017 a claim of up to £300 was £35. £10,000 for £200,000.
Positive point ++ - the process is fair in that everyone is treated alike. The judge is impartial.
Negative counter - - it’s pointless being treated fairly if you will never get the case to court. There are many preliminary stages to go through that add to the length of cases. Even after the case is set down for hearing at court, there is a long wait – usually a year for larger claims. The total of all this means the case may not be finished for years.
Briefly discuss advantages and disadvantages of using civil courts to deal with a claim of negligence. [12]
Positive point ++ – there is an appeals process with specific appeal routes from decisions made in the courts, so, if the claimant is not happy with the decision, it is usually possible to appeal against it.
Negative counter – s55 Access to Justice Act states an appeal can only provide if (a) the original court agrees and (b) the appeal court agrees to hear the appeal. This provides uncertainty in that there is no guarantee of winning a case. The person losing the case may have to pay the other sides costs. This makes it difficult to know how much a case is going to cost in advance. Delays in cases can also add to uncertainty and cost.
Negative point - - complicated process in that there may be compulsory steps to be taken before a case is started out in court. For example, parties may use pre-action protocols and give other parties information. Forms that need to be filled are set out in the Civil Procedure Rules. All of this makes it complicated for a person to take a case without legal advice and help. Claimant issues an N1 form. D responds with N9 form within 14 days.
Positive counter ++ - enforcement of the courts decisions is easier as any decision made by a court can be enforced through the courts.
Positive point ++ - the trial is conducted by a legal expert with the decision being made by a judge who is an experienced qualified lawyer.
Negative counter - - the costs of taking a case to court are often more than the amount claimed. In the High Court, the cost can be hundreds of thousands. For smaller claims, the costs are often more than the amount claimed. In 2017 a claim of up to £300 was £35. £10,000 for £200,000.
Negative point - - it’s pointless being treated fairly if you will never get the case to court. There are many preliminary stages to go through that add to the length of cases. Even after the case is set down for hearing at court, there is a long wait – usually a year for larger claims. The total of all this means the case may not be finished for years.
Positive counter ++ - the process is fair in that everyone is treated alike. The judge is impartial.
Discuss the advantages of using the courts to solve a civil dispute [12] – 2022 paper
Positive point ++ – there is an appeals process with specific appeal routes from decisions made in the courts, so, if the claimant is not happy with the decision, it is usually possible to appeal against it.
Negative counter – s55 Access to Justice Act states an appeal can only provide if (a) the original court agrees and (b) the appeal court agrees to hear the appeal. This provides uncertainty in that there is no guarantee of winning a case. The person losing the case may have to pay the other sides costs. This makes it difficult to know how much a case is going to cost in advance. Delays in cases can also add to uncertainty and cost.
Negative point - - complicated process in that there may be compulsory steps to be taken before a case is started out in court. For example, parties may use pre-action protocols and give other parties information. Forms that need to be filled are set out in the Civil Procedure Rules. All of this makes it complicated for a person to take a case without legal advice and help. Claimant issues an N1 form. D responds with N9 form within 14 days.
Positive counter ++ - enforcement of the courts decisions is easier as any decision made by a court can be enforced through the courts.
Positive point ++ - the trial is conducted by a legal expert with the decision being made by a judge who is an experienced qualified lawyer.
Negative counter - - the costs of taking a case to court are often more than the amount claimed. In the High Court, the cost can be hundreds of thousands. For smaller claims, the costs are often more than the amount claimed. In 2017 a claim of up to £300 was £35. £10,000 for £200,000.
Negative point - - it’s pointless being treated fairly if you will never get the case to court. There are many preliminary stages to go through that add to the length of cases. Even after the case is set down for hearing at court, there is a long wait – usually a year for larger claims. The total of all this means the case may not be finished for years.
Positive counter ++ - the process is fair in that everyone is treated alike. The judge is impartial.
Explain arbitration as a form of Alternative Dispute Resolution. [8] - specimen paper
Arbitration is where both parties voluntarily agree to let their disputes be left to the judgement of an arbitrator or a panel of arbitrators who are impartial. Private Arbitration is governed by the Arbitration Act 1966. It only applies to written arbitration agreements. Arbitration would be suitable for; package holiday contracts, contract of employment.
The agreement to go to arbitration can be made before a dispute arises as is the case in many Commercial contracts which include a Scott v Avery Clause which is a clause where the parties in their original contract agrees that in the event of a dispute arising between them, the dispute will be settles by arbitration. Parties agree who the arbitrator will be/provide a method for choosing one. If no arbitrator was selected, the court will appoint one.
The decision by the arbitrator is called an award and is binding on the parties and can be enforced through courts if necessary. It can be challenged in courts on grounds of serious irregularity in the proceedings or on a point of law as per s68 Arbitration Act 1996.
Describe the different sources of civil legal advise [8] – 2020 paper
One way a claimant/defendant can seek legal advise is through insurance companies. Advise can be taken out either before or after the event – in anticipation of fi9ghting or defending a legal case, or to insure against losing a case and having to pay the other sides costs as well as damages. For example the RAC/AA (motoring organisations) and other car insurance companies or house insurance companies who for an additional premium provide legal advise and assistance.
Another way a claimant/defendant can seek legal advise is through the Citizens Advice Bureaux (CAB) which is a town centre based agency providing general legal advice face to face, in addition to over the phone or online. They have over 3,500 locations through the country. Local solicitors and law students volunteer to give this advice. The CAB can also advise on local solicitors offering public funded advise.
Another way a party can seek legal advise is through a Free Representation Unit which are staffed by volunteer law students and newly qualified professionals under the supervision of case workers. The units offer free ;legal advise to those who cannot afford to pay and are unable to obtain legal aid.
Another source of legal advise is through Trade Unions who target specific advise on issues relevant in the union – generally on unemployment issues. For example, the national union of teachers, British medical council (doctors) and the national union of journalists.
Describe dispute resolution by tribunals. [8]
Both employment tribunals and ADR are ways of resolving disputes without going to court. Employment tribunals involves disputes between employers and employees, whilst ADR involves disputes between consumers and traders. The most common types of ADR are mediation and arbitration. Rights enforced through the 70 different tribunals include the right to mobility allowance, payment, not to be discriminated against and the right for immigrants to have claim for political asylum.
Employment tribunals are governed by the Employment Tribunals Regulations 2013 and enforced by a panel of three, two of which are non-legally qualified but have an expertise in that field and a first tier tribunal judge. In most cases, ACAS (The Advisory, Conciliation and Arbitration Service) must be contacted to resolve their dispute.
A claimant will use ET1 form to make a claim. A respondent as 28 days to fill out an ET3 form. If there’s no response, the judgment will be made in favour of the claimant. If the employer disputes the claim, then the case will go to ‘case management’ where a hearing is held. A judgment is made after hearing.
Either side may then appeal within 42 days of the tribunal decision to an Employment Appeal Tribunal, but only for a point of law.
Describe Arbitration as a form of Dispute Resolution. [8]
Arbitration is where both parties voluntarily agree to let their disputes be left to the judgement of an arbitrator or a panel of arbitrators who are impartial. Private Arbitration is governed by the Arbitration Act 1966. It only applies to written arbitration agreements. Arbitration would be suitable for; package holiday contracts, contract of employment.
The agreement to go to arbitration can be made before a dispute arises as is the case in many Commercial contracts which include a Scott v Avery Clause which is a clause where the parties in their original contract agrees that in the event of a dispute arising between them, the dispute will be settles by arbitration. Parties agree who the arbitrator will be/provide a method for choosing one. If no arbitrator was selected, the court will appoint one.
The decision by the arbitrator is called an award and is binding on the parties and can be enforced through courts if necessary. It can be challenged in courts on grounds of serious irregularity in the proceedings or on a point of law as per s68 Arbitration Act 1996.
Civil cases can be dealt with by the courts or by means of alternative methods of dispute resolution. Briefly explain any two of the following alternative methods: Negotiation, Mediation, Conciliation. [8]
Both conciliation and mediation are forms of Alternative Dispute Resolution (ADR) which includes any method of resolving a dispute without resorting to the use of court.
Mediation is a non-binding dispute resolution but more formal negotiation where a neutral third party known as the mediator attempts to resolve the issue between parties without giving their opinion. A mediator is acts as a facilitator, and an evaluation exercise aiming at ending the dispute. They are permitted to give their opinion on the merits so long as they are explicitly asked. S10 Children and Families Act 2014 encourages mediation between separated parents so long as they have attended a Mediation Information and Assessment Meeting (MIAM) before starting a court proceeding.
Conciliation is a form of mediation where a third party is active in raising ideas for compromise between the parties in disputes. The conciliator has no authority to seek evidence of call witnesses. In industrial disputes the Advisors Conciliation and Arbitration Service (ACAS) can give an impartial opinion on the legal position. The British Vehicle Renting and Leasing Association is a specific conciliation service set up to resolve disputes between individuals and renting companies.
Explain mediation and conciliation as forms of Alternative Dispute Resolution. [8]
Both conciliation and mediation are forms of Alternative Dispute Resolution (ADR) which includes any method of resolving a dispute without resorting to the use of court.
Mediation is a non-binding dispute resolution but more formal negotiation where a neutral third party known as the mediator attempts to resolve the issue between parties without giving their opinion. A mediator is acts as a facilitator, and an evaluation exercise aiming at ending the dispute. They are permitted to give their opinion on the merits so long as they are explicitly asked. S10 Children and Families Act 2014 encourages mediation between separated parents so long as they have attended a Mediation Information and Assessment Meeting (MIAM) before starting a court proceeding.
Conciliation is a form of mediation where a third party is active in raising ideas for compromise between the parties in disputes. The conciliator has no authority to seek evidence of call witnesses. In industrial disputes the Advisors Conciliation and Arbitration Service (ACAS) can give an impartial opinion on the legal position. The British Vehicle Renting and Leasing Association is a specific conciliation service set up to resolve disputes between individuals and renting companies.
Discuss the advantages of using arbitration as a way of dealing with a civil dispute. [12] – specimen paper
Positive point ++ An agreement to arbitrate can be made at any time and is usually included in a contract by what is known as a Scott v Avery clause
Negative counter - - however an unexpected legal point may arise in the case which is not suitable for a decision by a non-lawyer arbitrator.
Positive point ++ The decision is binding and can be enforced through the courts
Negative counter - -it can be expensive if the parties opt for a formal hearing, with witnesses giving evidence and lawyers representing both sides.
Positive point ++ arbitration is private which is beneficial as businesses may not wish to publicise their disputes. This can be important as it can help businesses which trade with each other to remain on good terms without the publicity of a court case royal mail
Negative counter - - there may be delays in obtaining an arbitrator and setting a mutually convenient date for the hearing. Commercial arbitrators can be very expensive, meaning not much of a saving is made in comparison to court proceedings. On top of this, no legal aid is available for arbitration.
Positive point ++ Arbitration allows the parties to choose the arbitrator, in contrast to the court system where the parties cannot choose the judge. The parties can also decide how and when the dispute will be heard, allowing for the issues to be resolved at a mutually convenient time and in a way that suits them. This is also helpful because the parties may wish to appoint an arbitrator who has the requisite expertise to decide on technical disputes.
Negative counter - - the decision of the arbitrator cannot always be enforced in the same way that a court’s decision can. Although there are appeal routes available, these are more limited than those available in court proceedings.
Briefly discuss advantages and disadvantages of dispute resolution by tribunals.[12]
Positive point ++ Tribunals are useful as they alleviate the pressure on the civil courts by dealing with cases that would otherwise fall to them. They do not suffer from delays and expense which beset the civil courts. This is helpful for the administration of justice and accords with the rule of law.
Negative counter - - legal aid is not available for the majority of tribunal hearings. This could lead to inequality of bargaining powers if only one side can afford a lawyer. This is contrary to the rule of law’s requirement that everyone should be equal before the law.
Negative point - - the number of cases dealt with by tribunals means that there can be delays in getting a hearing. The use of a non-lawyer programme adds to this problem as they sit part time, usually one day every fortnight.
Positive counter ++ tribunals are overseen by the Senior President of Tribunals, whose role is to ensure the tribunals are accessible, fair, quick and efficient. He liaises with Parliament and the Lord Chancellor. He supervises training and supervises the allocation of tribunal judges to chambers and cases.
Positive point ++ tribunals are generally cheaper to use than the civil courts. Firstly, the lose does not usually have to pay the winners costs. In addition, the informal nature of tribunals means that lawyers are not always required.
Negative counter - - the appeal routes from tribunals can be complex and expensive, and some tribunals have no appeal. For example, there is no domestic right of appeal available against a decision of the Investigatory Powers Tribunal. This is contrary to a fair trial.
Negative point - - a tribunal hearing is more formal than ADR. It can be a confusing procedure for individuals presenting their own case.
Positive counter ++ tribunal panels are experts in the type of dispute they are established to hear. This makes good decisions more likely than If the disputes were heard by a District Judge with less specific experience in that area. This also makes appeals less likely, contributing to the overall efficiency of the system.
Positive counter + + SC declared the fee scheme was unlawful and should never have been introduced.
Negative point – - 2013 Supreme court ruling introduced fees into the tribunal system, causing on average claims falling by about 65%. Sexual discrimination claims fell by 85%!!
Briefly discuss advantages and disadvantages either of mediation or of negotiation. [12]
Positive counter + + cheaper than a court case - mediation
Negative point - - one of the parties may be unwilling to take part in the process
Negative point - - the parties may be unwilling or unable to reach a settlement
Positive counter + + the parties are in control of the process
Positive point + + future businesses and personal relationship can be maintained
Negative counter - - the result may not be binding on one or both the parties
Negative point - - there is no guarantee the matter will be resolved and it will then be necessary to go to court after the failed attempt at mediation. In such situations there is additional cost and delay to resolution.
Positive counter + + the decision need not be a strictly legal one sticking to the letter of the law: it’s more likely to be based on commercial common sense and compromise.
Briefly discuss advantages of meditation and negotiation [12]
Positive counter (mediation) + + the decision need not be a strictly legal one sticking to the letter of the law: it’s more likely to be based on commercial common sense and compromise.
Negative point (mediation) - - there is no guarantee the matter will be resolved and it will then be necessary to go to court after the failed attempt at mediation. In such situations there is additional cost and delay to resolution.
Positive point + + future businesses and personal relationship can be maintained
Negative counter - - the result may not be binding on one or both the parties
Positive point + + negotiation is potentially the quickest, cheapest, most informal way of settling a dispute between parties as there is no court or lawyer involved
Negative counter - - if the dispute isn’t settled, the case may go to court, which involves court costs and insist the parties go back to negotiation before trial
Positive point + + it can be conducted by the parties themselves. There’s no ned to use lawyers or other people in the process.
Negative counter - - it is not suitable where the parties are very antagonistic towards each other as they will not be prepared to co-operate in finding a resolution
Discuss advantages of using ADR as an alternative dispute resolution process. [12] – 2021 paper
Positive point + + using a method of ASDR is less formal than using the courts: negotiation involves just the parties, in mediation and conciliation the parties are encouraged to reach an agreement by themselves and in arbitration, the parties can set the form of the process.
Negative counter - - in all forms of ADR, except for tribunals, the parties cannot be forced to engage in the process, and one of them may decide not to. The process will have to be abandoned and court action may be required to resolve the dispute, which will result in delay and cost.
Positive point + + lawyers are not encouraged as the processes are flexible and less formal and there is no rule that the loser pays the winners costs. This means lower costs for the parties and less confrontation in the process.
Negative counter - - if a claim is settled using one of the methods of ADR the claimant is likely to receive lower compensation than may be rewarded by the courts.
Positive point + + it is quicker and easier to arrange a resolution rather than going through the courts. If there is a hearing, is likely to be in private and there will be little to no publicity to embarrass the bodies.
Negative counter - - if an unexpected legal issue appears in either arbitration or employment tribunals, then a claimant who is unrepresented will face a disadvantage and a non-legally qualified arbitrator might not be able to resolve it.
Positive point + + especially in negotiation, mediation and conciliation the decision does not have to be strictly legal and is more likely based on commercial common sense and compromise. Again, this is likely to preserve the future relationship between the parties.
Negative counter - - proceedings and hearings in employment tribunals have a certain formality, which may be intimidated for unrepresented claimants.
Compare and contrast the use for Civil Courts to ADR [12]
Civil court – the case is presided over by a qualified judge, whether in the County Court or High court. They are experienced and qualified lawyers who deal with complex matter. They provide reasoned opinions to show how the decision was reached
ADR – using a method of ADR is less formal than using courts. Negotiation can involve just the parties. In mediation and conciliation, the parties are encouraged to reach the settlement themselves. In arbitration, the parties set the form of the process.
ADR – especially in negotiation, mediation and conciliation, the decision does not have to be strictly legal, and is more likely to be based on commercial common sense and compromise. This preserves the future relationships between parties.
Civil Court – a legally binding and enforceable decision will be made by the judge. The parties are guaranteed a resolution at the end of the trial and an enforceable remedy is guaranteed.
Civil court – a judge will allocate a defended case at an early stage to the most suitable track and court. It will be case managed through the process to a court hearing to minimise delays. Both parties will know the number of witnesses allowed and the length of the hearing.
ADR – it is quicker and easier to arrange a resolution than going through the courts. If there is a hearing, it is likely to be private and there will be no publicity to embarrass the parties.
ADR – ACAS encourages the parties to settle the claim before the hearing
Civil courts – it may be possible to get legal aid although aid for civil cases has been considerable reduced.
Describe the procedure for deciding where the trial of Summary and indictable offences should be held. [8]
The trial court for summary offences is the Magistrates Court and include matters involving common assault and driving without a license/insurance. Over 90% of defendants in the Magistrates court please guilty. The magistrates can sentence individuals imprisonment for 6 months for a single offence or up to 12 months for two or more offences. A fine can be issued up to £5000. However, an adjournment of trial may be needed if the: CPS requires more time to prepare the case, defendant is unprepared and wishes to engage a solicitor, magistrates require pre-sentence report on a defendant who pleads guilty, defendant pleads not guilty and wants to go to trial and, for example, witnesses need to be called.
The trial court for indictable offences involves an early administrative hearing in the Magistrates Court which is then transferred to the Crown Court for trial where the case is heard by a single circuit judge. It includes offences such as murder, manslaughter, section 18 wounding/GBH. Judges can sentence individuals up to the maximum set for the specific offence by common law or statute.
Describe the procedure for deciding where a triable either way offence should be tried. [8]
The procedure for a triable either way offence is set out in the Magistrates Courts Act 1980. It is an offence that can be tried in the Crown Court or in the Magistrates court. More often, the magistrates court serves as a plea before venue to which the case is then sent to the Crown Court. It includes offences such as theft, section 20 wounding/GBH and ABH. Sentencing includes a maximum sentence set for the specific offences.
In the plea before venue, magistrates ask the defendant if they plea guilty or not guilty to which a decision is made whether to hear the trial in that court or the Crown Court. Over 90% of defendants in the Magistrates court please guilty. However, if the D pleads not guilty then a mode of trial procedure takes place where the magistrates decided which court is best suited to hearing the case based on; the seriousness of the offence and the courts power of punishment.
Describe the role of the Magistrates’ Court in criminal cases [8]
Around 97% of all criminal cases are dealt with in the magistrates court, with more than 90% being concluded there. Cases are heard by one qualified District Judge or non-legally qualified lay magistrates (justices). The courts key functions include:
Trying summary offences and most triable either-way offences. More often, the magistrates court serves as a plea before venue for either way offences to which the case is then sent to the Crown Court.
If the D is found guilty, their sentencing powers are limited but reflect the seriousness of crimes under its jurisdiction. S142 of the Criminal Justice Act 2003 sets out the aims of sentencing, to which the magistrates enforced either 6 months imprisonment for one offence, or 12 months for more than two. A fine can also be issued up to £5000.
Magistrates also deal with the first hearing of indictable offences such as granting bail applications or making reporting restrictions before being sent to the Crown Court. Alongside this they deal with ancillary matters such as issuing ‘bench’ arrest warrants and granting or refusing bail in summary or either-way trials.
Finally, they try cases in the Youth Court for defendants aged 10-17.
Describe the role of the Crown Court in criminal cases [8]
In 1971 the system of Crown Courts was established to deal with criminal cases not tried fully in the Magistrates Courts in 84 locations throughout England and Wales. The CC deals with the most serious, indictable offences which include murder, manslaughter and robbery. They also deal with appeals against a magistrates court conviction or sentence and cases passed from a magistrates court for trial or sentencing. The trial in question normally begins with a plea and case management hearing where the defendant will plead either: guilty – and subsequently be sentences or not guilty – whereupon a full trial involving a jury of 12 will commence.
S142 of the Criminal Justice Act 2003 sets out the aims of sentencing….
Describe the appeal process from the Magistrate’s Court [8]
The criminal court system provides appeal routes for defendants in all cases and to the prosecution in certain situations.
Appeals from the Magistrates Court to the Crown Court is available to the defence only who appeal against their sentencing or conviction. The appeal is heard by a panel of single Circuit Judge and two magistrates. There is not normally a further appeal beyond this but it is possible to appeal to the QBD, purely on a point of law. A successful appeal will result in a quashed appeal, which confirms the appeal or alternatively remit the case back to the Magistrates court.
Appeals are also available for case stated appeals from the Magistrates Court to the Queens Bench Division. There are fewer than 100 case-stated appeal annually. The appeal is available to both the prosecution and defence who appeal on a point of law by way of case stated. It is heard by a panel of two or three High Court Judges which can include a COA judge. There is also a possible further appeal which can be made by the prosecution or defence to the Supreme Court on a point of law or general public importance. This must contain leave to appeal by either the SC or QBD. A successful appeal will be an appeal quashed to confirm the appeal or it’ll be sent to the Magistrates Court. In C v DPP 1994, a point of law involving criminal responsibility for children between ages of 10 and 14. The COA decided children were more mature and so rules not needed. The original conviction of intent to theft was upheld because the child does not know right from wrong.
Describe the appeal process from the Crown Court for the defence [8]
The criminal court system provides appeal routes for defendants in all cases and to the prosecution in certain situations.
The first appeal process can be made by the defendant, which is rare but possible to be made against their sentence and or conviction. It is heard in the COA (Criminal Division) within six weeks of conviction and must be granted permission – new evidence can be heard at this point. Permission is set out by The Criminal Appeal Act 1995. There is also a chance for a further appeal, albeit rare to the Supreme Court on a point of law or general public importance. A successful result means a quashed appeal or confirmed appeal.
