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Btec Law > Learning Aim A > Flashcards

Learning Aim A Flashcards

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1
Q

What’s civil law?

A

Civil law is the part of a country’s set of laws which is concerned with the private affairs of citizens, for example marriage and property ownership, rather than with crime.

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2
Q

What does civil law cover?

A

Businesses
Contracts
Estates
Accidents
Negligence
Domestic (family) resolutions

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3
Q

What are the aims of civil law?

A

Protect people and businesses in society
Protect the rights and duties for businesses and individuals
Seek compensation for the claimant

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4
Q

What’s a claimant?

A

a person who goes to court to make a legal complaint against someone else.

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5
Q

Whats a defendant?

A

is the person accused of the crime. In civil cases, the defendant is the person or entity that is being sued by the plaintiff.

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6
Q

What’s law of tort?

A

civil wrongs where one party causes another to suffer loss or harm, and the liable party must provide a legal remedy such as damages.

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7
Q

What is negligence?

A

when someone causes injury or a loss to someone else because of their reckless or careless behaviour.

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8
Q

What’s contract law?

A

the governing body that will enforce and interpret contractual agreements.

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9
Q

What’s compensation?

A

An amount given or received for a loss or injury.

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10
Q

What’s the purpose of civil law?

A

If a civil wrong is committed and the party at fault is found liable then the purpose of the case is to find a solution or remedy for the injured party

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11
Q

What are the outcomes/remedies in civil law cases?

A

Compensation
Or a court order such as injunction (an authoritative warning or order) to stop the defendant continuing the activity.

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12
Q

Why are civil law cases taken to court?

A

The decision to take the case to court is made by the claimant, and this is when it can’t be settled in any other way, such as negotiation

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13
Q

What court do civil law cases go to?

A

Either county court or high court

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14
Q

What’s standard of proof?

A

it’s the degree to which a party must prove its case to succeed
The decision in civil cases is made on a balance of probabilities
It’s a lower standard than criminal cases

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15
Q

What’s burden of proof?

A

SOMETIMES KNOWN AS THE “ONUS”
It sets out who has to prove their case to the required standard, and in civil cases, this is the claimant

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16
Q

Outline the Donoghue v Stevenson case

A

Mrs Donoghue went to a cafe with a friend who bought her ice cream and a bottle of ginger beer. The ginger beer contained a decomposed snail. Mrs Donoghue suffered from personal injury due to this and proceeded to claim against the manufacturer which was successful and resulted in the establishment of the modern law of negligence and the neighbour test.

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17
Q

What’s the structure of the civil courts?

A

The case is heard either in County Court or High court
Which caught the trial begins in depends on the complexity of the case, and the amount of money being claimed

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18
Q

How much money is claimed in County Court, (small claims track)?

A

Up to £10,000
Personal injuries up to £1,000

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19
Q

How much money is claimed in County Court (fast track)?

A

Up to £25,000
Personal injury up to £50,000

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20
Q

How much money is claimed in High Court?

A

Claims above £100,000
Personal injuries above £50,000

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21
Q

What are the three divisions in High Court?

A

Queens bench division
Chancery division
Family division

22
Q

What type of cases do Queens bench division hear?

A

Cases on contract and tort where amount claimed is over £100,000 or personal injuries over £50,000

23
Q

What type of cases do chancery division hear?

A

Disputes about land, wills and insolvency

24
Q

What type of cases do family division hear?

A

Divorce, children’s welfare and medical treatment

25
Q

What’s the court of appeal?

A

This is that a civil case can be appealed either by the claimant or the defendant

26
Q

Structure of appeal court 1

A
  1. Original hearing (county court- small claims or fast track)
  2. Circuit judge in the same county court
  3. Court of appeal (civil division)
27
Q

Structure of appeal courts 2

A
  1. Original hearing (county court heard by a circuit judge)
  2. High court
  3. Court of appeal (civil division)
28
Q

Structure of appeal court 3

A
  1. Original hearing (high court or county court multi track)
  2. Court of appeal (civil division)
  3. Supreme Court
29
Q

How do you appeal a case?

A
  • file an appeal notice within 21 days of the decision
  • permission is required and it wont be given unless the appeal is likely to succeed
  • the appeal court will only allow an appeal where the decision of the lower court is wrong or unjust
  • this allows confidence in judges
30
Q

What is the role of judges in civil cases?

A
  • civil cases are heard in open court so are open to the public, but there can be hearings in the judge’s private room away from the public
  • most civil disputes don’t end up in court but when they do judges can’t imprison and there is no jury present
  • the judge will hear the case alone and make their decisions giving a reasoned judgement they would also have to rule on arguments on what the law says
31
Q

What is the role of judges in the court hearing?

A
  • keep control in court to ensure the case is heard fairly and lawfully
  • ask questions if a point needs further explanation
  • decide on matters of procedure
  • hear oral evidence from parties/ witnesses
  • decide how to apply the law
32
Q

What’s the role of judges in the judgement?

A
  • make decisions in the form of a judgement
  • set out a reasoned argument based on relevant law
  • present judgement in writing- important for judicial precedent and so that the ruling is available to all parties
  • the judgement will make an order at the end can either be a sum of money or an order to do/not do something
33
Q

What are the costs when appealing a case?

A
  • the costs are dealt with after the judgement/ orders been made
  • can be expensive
  • the cost incudes: lawyer fees, court fees, expert witness fees, lost earnings and other expenses
  • the judge ensures the costs are fair and reasonable
    -the unsuccessful party usually has to pay the costs of both sides or a proportion of the others costs
  • but the judge can rule that each party pays their own costs
34
Q

What are small claims track?

A
  • <£10k
  • less formal
  • quicker
  • less scary than a full trial
  • takes place in a private room
35
Q

What’s ADR?

A

Alternative dispute resolution (ADR) refers to ways of resolving disputes between consumers and traders that don’t involve going to court.

36
Q

Why is ADR used?

A
  • cheaper
  • simpler
  • easily accessed by the public
  • businesses avoid bad publicity
  • private
37
Q

What are the different types of ADR?

A
  1. Arbitration
  2. Conciliation
  3. Mediation
  4. Negotiation
  5. Ombudsman
38
Q

What’s arbitration?

A
  • there’s an independent arbitrator instead of a judge (they’re an expert in the area the dispute relates to)
  • usually based on paper evidence - parties wouldn’t need to sit face to face.
  • decision of arbitrator is legally binding. Whatever arbitrator decides it will be done.
  • Therefore, cannot start a claim in civil court later.
  • BUT, You can go to court later if the decision of the arbitrator has not been carried out.
    Some schemes are free, some have fees, but the fees are still cheaper than going to court.
39
Q

What’s conciliation?

A
  • an independent person helps make a settlement between the two parties
  • a concilator makes suggestions and plays an active role when settling disputes
  • they’re usually offered in consumer cases such as to settle disputes about goods bought.
40
Q

What’s mediation?

A
  • focuses on working on the relationship of the two parties and aims to help them understand the issues and the options available for resolving.
  • voluntary
  • confidential
  • mediator is independent and impartial and they help the parties reach a resolution that’s agreeable to both
  • mediation is common in family matters
  • they don’t make judgements or decide outcomes
    -low cost
41
Q

What’s negotiation?

A
  • direct discussion between the two parties
  • conducted between the parties themselves
    -solicitors can be involved but can make things more expensive
42
Q

What’s the Ombudsman?

A
  • a person who investigates complaints about organisations
  • they can help resolve complaints
  • there are different ombudsman for different industries
    -they’re independent, free of charge but can take a long time
  • they’re unbiased
  • the claimant must complain to the organisation first
43
Q

Compare ADR with taking a case to court

A
  • ADR is cheaper than the court process
  • ADR is faster, ADR bodies must complete their handing of a case within 90 days, for a court process it can take a case an average of 357 days to get to crown court and 178 days in court to get an outcome
    -ADR is a private process
  • ADR is more accessible to members of the public
44
Q

Advantages of ADR

A
  • less expensive
  • arbitration leads to a private resolution so the info brought up in disputes can be kept confidential
  • in conciliation the parties reserve the right to go to court if they’re not happy with the outcome
    -negotiation prevents conflict from escalating between the two parties
    -ombudsman can make recommendations to public bodies
45
Q

Disadvantages of ADR

A
  • if ADR is unsuccessful it can delay the court proceedings
  • many arbitration clauses work in favour of large employers/ manufacturers when they’re going against an employer or consumer who doesn’t know how arbitration works
  • there’s no final decision at the end of conciliation
  • negation can be used to stall another party from asserting its rights
    -ombudsman’s determine the claimants involvement
46
Q

How should a lawyer communicate with a client?

A
  • everything should be confidential
  • permission should be granted from client to carry out discussions with someone else present (e.g., someone doing work experience
  • be calm, appropriate, professional
  • listen to instructions and read documents carefully.
  • ask relevant questions to collect more information.
  • use and maintain eye contact.
  • in writing – use language they will understand and explain legal terms.
47
Q

Other lawyers communication

A

Other lawyers are solicitors and barristers
Communication ‘without prejudice’ – this is stated at the beginning of a communication and means the documents/evidence is not admissible and is aimed at settling a dispute.

48
Q

Instructions to counsel

A

(Counsel = barrister)
This Includes:
• Who is instructing (usually the solicitor)
• Client names
• Other parties to the case
• Background to the case (paragraph describing what has gone on)
• Nature of dispute (type of crime, whether it is criminal or not)
• List of relevant events (date order)
• What the barrister is being asked to do e.g., give an opinion, appear at court, draft legal documents
• Copies of relevant documents (court papers, correspondence, contacts etc)

49
Q

What does the counsel (barrister) reply

A

• Barrister replies with an opinion or appears at court.
• They might require a meeting in advance with solicitor/client.
• The barrister’s clerk will discuss fees with solicitor or client. Between £300 per hour to £1000 per hour, this depends on the seniority of the barrister.

50
Q

Communication with the courts

A

• Completion of forms/payment of fees
• Be polite when doing this in person.
• Being appropriately dressed
• Barristers are dressed in their wig and gown.
• In court, if a judge thinks lawyers are not appropriately dressed, they will say “I cannot hear you Mr X”.
• This does not mean they must speak louder!
• Respectful of judge, magistrates, and other court officials

Btec Law (1 decks)

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