legal system, civil courts, part a Flashcards
1
Q
civil law
A
dispute between 2 people, or a business or company, all private disputes
2
Q
different between criminal and civil: description
A
civil: disputes between individuals, companies, organisations
criminal: cases seek to prove the commission of a crime and the punishment of offenders
3
Q
different between criminal and civil: case brought by
A
civil: private individual or company
criminal: crown prosecution service on behalf of the state
4
Q
different between criminal and civil: areas of law
A
civil: used in contracts, negligence (injuries), divorce, intellectual property, employment
criminal: used for robbery, theft, fraud, burglary, murder, manslaughter, assault
5
Q
different between criminal and civil: burden of proof
A
civil: claimant must prove their case
criminal: the defendant is ‘innocent until proven guilty’ by the prosecution
6
Q
different between criminal and civil: decision
A
civil: defendant is found liable or not liable in laws
criminal: defendant is ‘innocent until proven guilty’ by the prosecution
7
Q
different between criminal and civil: outcome
A
civil: award of the monetary compensation for damages or other remedies eg. injunction (stop someone from doing something)
criminal: punishment such as custody, fine or community penalty
8
Q
civil cases (6)
A
- types of disputes are varied
- company may be claiming that money is owed to it (contract law)
- varies from a few pounds to several million
- individuals may be claiming compensation for injuries in an accident (law of tort)
- claim may not only be money
- when dispute occurs, the parties will try solve it by negotiating with the other person/business, or by trying another for of dispute
9
Q
civil court structure: country court (7)
A
- 200 in total (gov pans to close 50 of these)
- main jurisdiction:
- all contract and tort claims (negligence)
- all cases for the recovery of land
- disputes over equitable manner such as trust up to £350,000 in value
- cases in crown court are heard by a circuit judge or a district judge
- rare cases for jury of 8: only for defamation cases (someone saying something that isn’t true)
10
Q
civil court structure: high court (3)
A
- based in london
- has judges sitting in several towns and cities throughout England and Wales
- jurisdiction (power) to hear any civil case
11
Q
pre-trial procedure (4)
A
- court - final step (only if no negotiation found)
- firstly try to negotiate an agreed settlement with the party concerned
- using alternative dispute resolution (ADR)
- vast majority of cases are settled and do not go up to court
12
Q
pre-action protocols (3)
A
- parties encouraged to give information to each other
- before a claim is issued (especially in personal injury) a pre-action protocol is followed
- if procedure is not followed, parties may be liable for certain costs if they made a court claim
13
Q
which court to use (2)
A
- if the other person denies liability or refuses to use ADR, court case is needed
- court used depends on amount claimed, and whether the claim is for personal injuries or damage to property
14
Q
which court to start the claim in: claim for £100,000 or less
A
country court
15
Q
which court to start the claim in: personal injury case claim for £50,000 or less
A
country court
16
Q
which court to start the claim in: claim over £100,000
A
high court to country court
17
Q
which court to start the claim in: personal injury cases claim for over £50,000
A
high court or country court
18
Q
issuing a claim (7)
A
- country court: can choose to issue claim in any of the 200 country courts in he country
- high court: they can go to one of the 20 district registries of the main court in london
- need to complete a claim form and a change will be made for issuing the claim
- fee varies: depending on how much the claim is for
- 2017: claim up to £300 was £35
- the more the claim is of the higher the fee
- top end of scale £10,000 for claims £200,000 or more
19
Q
fees and claims (2)
A
- claims can be made on paper or electronically
- court fee needs to be paid at the time you submit the form
20
Q
defending a claim (6)
A
- when defendant receives the form, several routes can be taken
- admit claim and pay full amount (case will end)
- dispute the claim
- if the defendant wishes to defend the claim, he must send with an acknowledgement of service (form N9) on a defence to the court within 14 days of receiving the claim
- if the defendant does neither, claimant can ask the court to make an order that the defendant pays the £ and cost of claim
- once case is defended, the court will allocate a ‘track’
21
Q
three tracks (2)
A
- decision as to which track is made by the district judge in the county court or master (a procedural judge) in the high court
- to help the judge as to which track, both parties are sent an allocation question
22
Q
amounts: small claims track
A
up to £10,000 (personal injury: up to £1,000)
23
Q
amounts: fast track
A
£10,000-£25,000 (personal injury: up to £1,000) hearing lasting one day
24
Q
amounts: multi track
A
£100,000 and complex cases over £25,000, hearing lasting up to 3 days
25
amounts: intermediate track
£25,000-£100,000, hearing lasting up to 3 days
26
small claims track (5)
- usually heard in private, lasts up to 2-3 hours
- heard by district judge
- plays a key role, asking questions and making sure that both parties explain all their important points
- parties are encouraged to represent themselves
- cannot claim the cost of using a lawyer from the other side, even if they win the case
27
fast track claims (5)
- strict timetable for the pre-trial matters, heard by a circuit judge
- one case set down for hearing, the aim is having the case heard within 30 weeks, in practice nearer to 50
- trial heard by a circuit judge, takes place in open court
- more formal procedure than for smaller claims
- hearing limited to one day
28
multi track (6)
- each case is heard by a circuit judge, who will also be expected to 'manage' the case from the moment it is allocated. This includes:
- identifying the issue at an early stage
- encouraging parties to use ADR
- dealing with procedural steps without the need for parties to attend court
- fixing timetable by which the different stages of the case must be completed
- case management aimed at keeping costs low, heard quickly
29
appeal routes in civil cases (3)
- once a decision has been made in either the county court or the high court, there is a possibility of appeal against the decision
- different appeal routes from thew county court and the high court
- value of the claim and level of the judge who heard the case affect which appeal route should be used
30
appeals from the county court
- depends on the judge that heard the case
- district judge: appeal to a circuit judge in the same county court
- circuit judge: appeal to a high court
31
second appeals: county court
- always be the court of appeal
- however, only allowed in exceptional cases as set out in section 55 access to justice act 1999 which states:
- no appeal may be made to the court of appeal
- the appeal would raise an important principle or practice
- there is another compelling reason for the civil court
32
appeals from the high court
- appeal usually goes to civil court
- rare cases may be a 'leap frog' appeal direct to the Supreme Court
- since 2015, such appeal must involve an issue which is of national importance or raise issues of suffice importance to warrant the leapfrog
- Supreme Court must give permission to appeal
33
further appeals: high court
from the decision of there court of appeal there is a further appeal to the Supreme Court only if the court gives permission to appeal
34
civil courts advantages
- process is fair, everyone is treated alike, judge is impartial
= user friendly, online
- trial is conducted bye a legal expert, decision made by a judge who is an experienced, qualified lawyer
= eg. family judge, negligence
- enforcement of courts decision is easier as any decision made by the court is enforceable
= compensation for a personal in jury
- appeal process with specific appeal routes: if the claimant is not happy then can appeal against decision
35
civil courts disadvantages
- cost: cost often more than there amount claimed. fees based on % of claim, if you dont win, could be very expensive
= can result in people not going to court
- delay: preliminary stages add to the length of a case, wait up to one year for a case to be heard
= could delay medical treatment, affecting mental or physical health
- complicated process, may be compulsory steps to be taken before case is started
= could deter people from making claims which they are entitled to
- uncertainty, no guarantee of winning a case. person winning the case may have to pay other costs. difficult to know how much the case will cost in advance
= no definite certainty
- very little (family) or no legal aid available, deters the claimant from pursuing claim, especially if against a bigger firm
36
ADR
alternative dispute resolution: there are other ways to solve a dispute, rather than going straight to the court, always before an n1 form
37
alternative adr
negotiate, mediation, conciliation
38
formal methods - binding
tribunals, arbitration
39
reasons not to go to court
- expensive
- time consuming
- stressful for people involved
- may loose case
- case will be heard in public and may be reported in the press
40
negotiation
- normally takes place before court action is considered
- two parties to the dispute trying to reach an agreement
- may use lawyers to do negotiation
41
negotiation: advantages
- cheap
- quick
- no need to involve other people
- neither party has to accept a solution unless they are happy with it
42
negotiation: disadvantages
- won't work if parties cannot reach an agreement
- the party who is claiming will probably have to settle for a smaller sum than they would like
- informal agreement can be binding, party may change their mind
43
mediation
- 3rd party
- not binding
- available for a range of disputes, many local authorities have a mediation service to deal with disputes between the neighbours
- good method for divorced couples
- helps parties meet a compromise, must be nuetral, can be asked for an opinion
- commercial mediators saves businesses money
- example: relate, the relationships people, charity, free services
44
conciliation
- more experienced
- play a more active role, suggest solutions, advising the parents
- can suggest grounds for a compromise and basis for settlement
- does not necessarily lead to a resolution, may still need to seek court action
- example: acas
45
mediation and conciliation: advantages
- neutral mediation and conciliation keeps the proceedings calm and makes it easier for the parties to discuss the issues
- ideal methods when the parties to the disputes are likely to have future dealings eg. neighbours, separating couples, employers and employees
46
mediation and conciliation: disadvantages
- parties might feel pressured into reaching an agreement
- case of dunnett v railtrack 2002: parties who refuse to use mediation may not be able to use the courts to settle their dispute
- can be difficult to hold a party to an agreement, not binding
- if the parties do not want to discuss probabilities then nothing will change their mind
47
tribunals and arbitration
alternative means of solving disputes, operate alongside the court
48
employment tribunal
- operate alongside the court
- form a hearing regarding dispute between employers or employees
49
what do employment tribunals do?
- first insist that parties have contacted ACAS before applying to court
- set up by gov
- final stage to resolve issues
- hears claims for all employment matters eg. unfair dismissal, redundancy, discrimination
- start claim online or print off form
- less formal than court hearing
- lawyers not necessary
- parties given equal chance and questioned
- decision is binding
50
arbitration
- alternative to court
- normally used by businesses
- governed by arbitration act 1996
- object to obtain fair resolution without delay or expenses
- parties should agree how disputes are resolved
- voluntary submission by parties
- agreement will be in writing
- binding
- precise details left entirely to the two parties
- Scott v avery clause
51
tribunals advantages
- cheaper than courts if lawyers are not used
- the procedure is less formal than a court hearing
- the tribunal members are specialists in the areas they cover
- quicker than court hearing
52
tribunals disadvantages
- if one side uses a lawyer, the other side is at a discharge
- some tribunals are nearly as formal as courts
- some tribunal hearings are public eg. employment tribunals
- funding (generally) is not available for tribunal hearings
53
arbitration advantages
- parties can choose their own arbitrator (technical expert, lawyer or professional arbitrator)
- hearing at a time and place to suit
- resolved quicker than courts
- arbitration services provide experienced arbitrators
- private hearing, no publicity
54
arbitration disadvantages
- formal process, similar to court
- can be expensive if professional arbitrator is used
- dispute may take a long time to settle down due to delays in the process
- rights of appeal limited
