Legal system - 1.1 civil courts and other forms of dispute resolution Flashcards
1
Q
what is criminal law?
A
where a offence against the state has been committed and the state will prosecute them.
2
Q
What is civil law?
A
Is a private dispute between individuals and/or the businesses.
3
Q
where is civil cases are tried in?
A
they are tried in county courts - less serious cases.
the high court - more serious cases.
4
Q
what is the proof in civil cases?
A
“on the balance of probabilities”. - this is a lower standard of proof where the judge decides who is right.
5
Q
what is the outcome for civil cases?
A
the person is “liable” or “not liable”. If the defendant is liable they must put the right in the matter as far as possible. By awarding damages.
6
Q
what is the purpose of civil law?
A
it upholds the right of the individuals and the courts allows compensation in putting both parties in posterior if there was no any breach of civil law
7
Q
what is the purpose of criminal law?
A
to maintain law and order. When a person found guilty they will be punished to protect society and deter criminal behaviour.
8
Q
what courts are criminal cases are tried in?
A
-magistrate courts - less serious cases.
- crown court - more serious offences are tried here.
9
Q
what is the proof in criminal cases?
A
“beyond reasonable doubt”. High standards of proof needed as conviction can result in prison sentence.
10
Q
what is the outcome of criminal cases?
A
the defendant is “guilty” or “not guilty”. Can be “convicted or acquitted”. Guilty defendant is punished according to the crime.
11
Q
what is the jurisdiction of county courts?
A
- can nearly try all the civil cases e.g law of tort, recovery of loss, disputes over equitable matters (shares).
- usually a circuit judge (have a region temporally) or district judge (fixed region).
in rare cases jury (of 8) can be used e.g false imprisonment.
12
Q
what is the jurisdiction of high court?
A
- is based in london.
- cases go to three division, kings bench, the chancery, family division.
13
Q
what does the kings bench division do ? (high court).
A
- Biggest division. Deal with all contract and tort issues over £100,000.
- Cases usually tired by a single judge.
- Jury in rare case e.g false imprisonment if there are 12 jury’s.
- There is admistrstive court in the kings bench division.
- The role is to supervise the use of law by local government.
14
Q
what does the chancery division do? (high court)
A
- Deals with business issues such as insolvency for both companies and individuals.
- the enforcement of mortgages.
- Disputes relating to trust property.
- copyrights and patents.
- Intellectual property matters.
- contested probate actions, probate = proving a will.
15
Q
What does the family division do? (high court).
A
- Familiy courts are established by the crime and courts act 2013.
- All familiy issues can be dealt in here, but if there is an exceptionally difficult case. It can be moved up.
- Deals with cases regarding the children act 1989 e.g welfare of a child.
16
Q
what is the pre trial procedure?
A
- what happens before it gets to the courts.
- ADR supposed to be used first, and can be court ordered in some cases e.g family court.
- Pre action protocols, decide a court, issue a claim, and defend a claim.
17
Q
what is pre - action protocols?
A
- both sides give information to each other to prevent new information emerging during a trial.
- can be charged if you do not follow the protocol checklist for efficiency.
- PAP will depend on the type of claim e.g personal injury.
18
Q
what is deciding a court?
A
- Depend on the amount claimed, if under £100,000 if goes to the county court.
- if under £10,000 it goes to the small claims unless it is a personal injury case.
- if the case is under £50,000 it is cc court, if it is under £5000 it is sc court.
19
Q
what does issuing a claim mean?
A
- Fill the N1 form (the claimant) at court or usually online.
- the claimant is charged a fee depending in the amount claimed e.g £200,000, they will be charged £10,000.
- it ensures only serious claims are made.
20
Q
what does defending a claim mean?
A
- defendant receives the claim. can decide to just pay the amount claimed and it prevents it going to court.
- if they dispute it, they will fill an N9 form within 14 days. Can request for 28 days but must be permitted.
- The court then decides what track to use.
21
Q
what is the four tracks?
A
- The four track is small claims, fast track, multi - track, intermediate track.
- The decision is made by the district judge in the cc court it the master in the high court.
- Any questionnaire is to both parties first (form N181).
22
Q
what is small claims track?
A
- claims under £10,000 or personal injury under £5000 in 2021.
- usually done in private.
- District judge has flexibility in the trial arrangements.
- You usually represent yourself as you cannot claim the cost of a lawyer back from the defendant even if you win.
- it lasts for half an hour.
23
Q
what is a fast track?
A
- claims of £10,000 - £25,000.
- straight forward disputes.
- stricter timetable than small claims - aims for within 30 weeks.
- circuit judge will complete the hearing in one day. only one witness will be allowed can also have have lawyers.
24
Q
what is multi - track?
A
- cases over £25,000
- circuit judge is expected to carry out much of procedural work as possible before it reaches court. E.g engouring ADR and identifying any issues.
- usually a county court if over £50k or complex point of law can be moved up to the high court.
25
what is intermediate track?
- Cases valued between £25,000 to £100,000 and is a monetary relief.
- max three day trial and two experts.
- the benefits is that it will be a simplified procedure, includes stricter case management.
26
what is appeals in court?
it depends on which court the original case was heard in and how much the claim was for.
27
what happens if an appeals happened from county court?
- if it was heard by a district judge, then it will be heard by a circuit judge in the same county court.
- If heard by Circuit judge then it goes to a high court judge. From a relevant division if it regards an important point of law, e.g Personal injury to kings bench it can go to court of appeal.
28
what is second appeals?
- It always goes to the court of appeal (civil division). Or from a high court originally.
- Only allowed in exceptional cases as set out by Access to justic act 1999 :
- a) raise an important point of principle.
- b) there is some other compelling reason.
- COA can move the case on to the SC (national interest, public importance)
- in rare cases a leap from High court to Supreme court to national importance.
29
What is the appeals from high court?
- usually goes to the court of appeal (civil division).
- in rare cases there can be a leapfrog appeal straight to the supreme court.
- since 2015 this must involve an issue it national importance or of other importance.
- SC court grants this right to leapfrog. E.g Miller v the brexit secretary (2017).
30
what is employment tribunals?
is a body set up to settle a dispute. E.g employment tribunals deal with disputes between employers and employees.
31
what is the first steps in employment tribunals?
1) need to use early conciliation
2) Acas will try to help you reach an agreement.
3) Acas is a government funded body.
4) Must be started by a deadline.
5) these steps exist to create a fair, efficient and accessible system.
32
how to starting your claim in employment tribunals?
1) - Fill the ET1 form (employment tribunal one) form.
2) - For this form, you need Acas early conciliation certification form.
3) You will layout your claim, you need a date and need details.
- It is sent your ET1 to your employer if they want to respond or defend themselves.
- Employment response is ET3 and they are respondent. Employers have 28 days to respond to the tribunal.
33
what is the hearing in Employment tribunal?
1) need to find date,time and place of hearing and the estimated time.
2) You need a document, e.g payslip.
3) employment judge can request a full tribunal.
34
what is the steps of hearing in employment tribunals?
1) normally give evidence and call any witnesses first.
2) You and witnesses have to give evidence on oath, if you lie, you are convicted of perjury.
3) Give evidence by reading a prepared written statement.
4) respondent representative can then ask you questions and this is cross examination.
5) finally, employment judge ask questions.
6) employment judge will announce the judgement and give response. It could be up to 4 weeks.
7) Potential issues with access to justice.
extra info: employment is in a separate building, and is less formal then the courts. The judges won’t wear a wig. Advice from a lawyer/trade union will cost money. Judgement will be given in writing. if you are unhappy with this decision you can ask for a review within 14 days.
35
what is ADR?
ADR (alternative dispute resolution) is any method of solving a disagreement without resorting to using the courts.
36
what is negotiation? (ADR)
- it means to try and reach an agreement and where two parties meet and attempt to negotiate directly with each other.
- it is private, quick, and cheap.
- if they cannot reach an agreement, they can hire a solicitors to do so on their behalf.
- Negotiations take place in the background of court cases. Often result in settlement “ at the door of the court”.
- Negotiation can be carried out by face to face talking, writing, phone or emails, other suitable method it can be verbal and the parties conduct themselves.
37
what is the advantages of ADR?
- can be straightforward contact between the parties.
- low of no cost - no need for lawyers.
- the parties themselves are in control.
- Relationship between the parties are preserved.
- continued business relationships.
38
what is the disadvantages of ADR?
- one of the parties may not be prepared to negotiate with the other.
- one of the parties may be hostile towards the other.
- either party may believe they are in the “right” and not be prepared to settle.
- court proceedings may be the only way to resolve the dispute.
39
what is the role of an arbitrator?
there decision is binding and can be upheld through the courts.
40
what is the hearing in ADR?
- up to the parties.
- paper arbitration: done entirely on writing - relevant documents are submitted.
- can be done orally and witnesses can be called, usually do not swear oath.
- can be a combination of both ; attend a hearing then submit documents after.
- if the witnesses are called then the Aact allows for the courts to enforce their attendance.
- date, time and place, all up to the parties - whatever is convenient.
- the decision made by the arbitrator is called an “award” and is binding.
- can be even enforced via the courts. usually final but Aact says can be challenged in the courts on the grounds if serious irregularity in proceedings or on a point of law.
41
what is mediation in ADR?
- a neural mediator helps the parties reach a compromise.
- look for common grounds between the two.
- do not usually offer their option but can if asked.
- can only be used if there is hope of a compromise.
- important in family cases, as before any court proceedings they need to show they have attempted mediation first.
- there are exceptions ; domestic violence cases; could induce further trauma.
- the parties have control over the process, stay as long, and withdraw at any time.
- charity offering mediation services is the centre for effective dispute resolution (CEDR) provides training for mediators.
- the aim is a win/win agreement for those involved.
- Sunderland city council and togeather north east (TNE) provides free community mediation services.
42
what is the advantages of mediation? (ADR)
- cheaper than a court case, - can be free charities.
- the parties are in control over the process - meeting locations.
- Further business relationship can be preserved - less hostile.
43
what is the disadvantages of mediation? (ADR)
- one of the parties may be unwilling to take part in the process.
- The parties may be unwilling to reach a settlement - may not get an outcome.
- the result may not be binding on one or both parties.
- relies on a skilled neural mediator.
44
what is conciliation in ADR?
- is very similar to mediation but the third party takes a more pro - active role - they suggests grounds for compromise.
- cannot call witnesses it seek evidence.
- Acas can step in with industrial disputes (impartial).
- May not lead to a resolution - so different from arbitration which leads to a final binding decisions.
- the parties are in control.
45
what is the advantages of conciliation? (ADR).
- cheaper than taking a court case.
- the parties have some control choosing the conciliator and the process.
- further business relationship can be preserved.
- complicated process - there will be compulsory steps needed before the case is started in the court.
- uncertainty : no guarantee of winning a case. The person who loses may have to pay for the others cost. Delays in case add to uncertainty.
46
what is the disadvantages of conciliation? (ADR)
- the conciliator may force a resolution on one or both of the parties.
- the process may not bring about a resolution.
- the result may not be binding on one or both parties.
47
what is arbitration in ADR?
- parties agree to submit their claims to the judgement of someone other then a judge. It is voluntary.
- Must be in writing as according to the arbitration Act 1996.
- a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expenses.
b) the parties should be free on how their dispute are resolved. and subject only to such safeguards are necessary for public interest.
- many commercial contracts now include what is known as scott v Avery clause where they agree if something goes wrong they will settle it will be arbitration.
- agreements are governed by Arbitration act (1996). And courts will refuse to deal with disputes when there is scott v Avery clause.
- the initial agreement will name an arbitrator it provides a method of choosing. And if there is no selection procedure, the court will appoint an arbitrator.
- common to find Scott v Avery clause in building contracts, package holiday contracts and mobile phone contracts.
48
what is an arbitrator in ADR?
AA 1996 states:
- parties decide the number. if they cannot agree then it is one.
- can be provided by the institute or arbitrators (professionally trained arbitrators with expertise in a specific field).
- in commercial disputes the president of the relevant trade orsginisation normally appoints the arbitrator.
- if it is about a point of law they can appoint a lawyer to act as arbitrator.
- As a last resort the court can appoint one.
