Starting A Court Case Flashcards
How to start a court case
The majority of class are not settled in court and are settled instead through ADR
Court cases are more time consuming and expensive
Court cases often don’t lead to a satisfactory outcome
ADR - alternative dispute resolution offers an alternative to courts
Consists of :
Negotiation
Mediation
Conciliation
Arbitration
What are the pre action protocols
Lists of things that need to be done
If the parties don’t follow the procedure set out then they may be liable for court costs
A letter is sent out exploring the claim and details of the injury etc
A D is given 3 months to investigate
D must then reply, setting out if liability is admitted of if it is denied and the reasons for the denial
Is expert evidence then the parties should try and agree on one expert
This pre action protocol leads many claims to be settled out of court
Going to court
If the person denies liability or refuses to use ADR then the claimant will have to start a court case.
Personal injury claim for up to 50,000 - county court
Damage to property for up to 25,000 - county court
If it is above these amounts then it will start in either the county court or the high court (QBD) it is up to the claimant which he chooses
Issuing a claim
You can choose to issue a claim in any of the 230 county courts or 20 high courts
You have to complete an N1 form
The courts officer will give you notes helping you to complete the for, and will support if needed
You can also get help from citizens advice
Court fees are: up to £120 for claims up to £5000
Up to £245 for claims between 5,000 and 25,000
£1,670 for claims over £300,000
Defending a claim
Once the D receives the claim form you can:
Admit the claim and pay the full amount
Disputes the claim and send an N9 form to the court or submit a defence within 14 days to the court
If the D does neither he defaults which means the court will make an order that the D pays the money and costs claims
Once a claim has been defended and it is clear that it will go to court then it is allocated a track
What is the three track system
The district judge in the county court or the master in the high court decide which track is more suitable.
The judge can agree with the parties to place cases on a lesser track if it is more convenient
Small claims track - disputes under £5000 and PI under £1000
These are heard in private in county court
Parties are encouraged to represent themselves
Fast track - straightforward disputes £5000-£25,000
Heard within 30 weeks
Circuit judge will hear session
Will last max one day
Limited to one expert witness
Multi track- cases over £25,000 or for complex cases under this amount
Heard by circuit judges who will manage the case from start to finish
Case management
Judges manage the cases and has to:
Identify issues at an early stage
Decides which issues need investigating
Encourage parties to use ADR
Deal with any procedural steps without parties needing to attend court
Give directions to ensure the trial can proceed quickly and efficiently
Fix timetables for when different stages must be completed by
All aimed at keeping costs low was possible and making the process as fast as possible
The judge makes the decision if the claim has been proven or not
The judge then decides how much to award the claimant for the injury or damage
What is the burden and standard of proof
The burden of proof is on the claimant (except in cases of red ipsa loquitiur)
The claimant has to prove all 3 elements of tort - duty, breach and damage
The standard of proof from criminals is - beyond all reasonable doubt
The standard of proof for tort is - on the balance of probabilities - who is most likely to be right
What is res ipsa loquitur
This applies where it is difficult for the claimant to know exactly what happened even though it seems obvious that the defendant had been negligent - where a patient after an operation had been found to have a swab still in them. The patient doesn’t know how the duty of care has been breached as they were unconscious
In case such as these the claimant only has to show:
The D was in control of the situation which causes the injury
The injury was more likely than not to have been cause by negligence
The burden of proof then moves to the D to disprove the claim
Scott v longing Katherine docks 1865 - claimant was hit by 6 heavy bags of sugar from the D warehouse. He didn’t know how they fell but the court still held that the facts spoke for themselves and it was then up to the D to prove that he hadn’t been negligent.
What are compensatory damages
When a claim is successful damages (an amount of money for compensation) will be awarded
The aim is to place the claimant in the same position as if the tort had not been committed - this is straightforward with property as you can purchase something new etc
However where the claimant has suffered from serious personal injury it is difficult to put a price on it
What are pecuniary and non pecuniary loss
Pecuniary - loss that can be easily calculate in terms of money
- hire care
- wages lost
Non pecuniary - loss refers to claims that are not money based
- pain and suffering due to injuries
- change in lifestyle
- unable to enjoy activities that they had done previously
What is mitigation of loss
The claimant is entitled to compensation but it must be reasonable
An example being if there is suitable treatment on the NHS they can’t then claim for private health care. If certain treatments are only available however private then they will be eligible for that
Some philosophy applies to property you are entitled to a new product or the cost of replacing the item however you are not entitled to a more expensive product
What are special and general damages
Special damages - these are for items where the cost of them can be calculated specifically - pecuniary loss
Hire car
Replacing items
Loss of earnings for work that has already taken place
General damages - non pecuniary loss
Pain and suffering
Loss of future earnings
Amount needed for any future nursing
What is a lump sum?
When a court awards money for non pecuniary items - pain and suffering - they can only award a lump sum
This can be unfair because people’s medical conditions or needs may becomes worse over time
It may also be unfair is the claimant conditions improve and the D has already headed over a lump sum
What is a structured settlement
Suggested by Pearson commission on personal injury that there should be some method of reassessing an individual needs for time to time. - not happened yet
Damages act 1996 - allows for structured settlements where if all parties agree a certain amount can be paid at interval- per month or per year. Done through a financial company
This protects the claimant as their situation may be worse
Protects the D because they only have to continue paying if it is genuinely necessary however the courts have no power to order structured settlements
