The Civil Process Flashcards
Why were the civil procedure rules 1998 implemented?
Lawyers were being ruthless and charging too much
What are the civil procedure rules 1998
Ensuring a case is dealt with justly
What was the act implemented along with?
Access to Justice Act 1999
What were the acts made in response to?
Woolf Report
Why was the woolf report commissioned?
To research problems in the court system
What did woolf criticize?
Long delays and unacceptable expenses
What did woolf accuse lawyers of?
Unnecessarily delaying cases to drive up fees
What did woolf say about the number of expert witnesses?
Too many, added costs
Civil procedure rules 1998 ensured parties must follow what?
Pre-action protocol and claim form
What does the protocol state?
Defendant must receive a letter explaining how claim arrises, what fault they have done and any details of personal injury etc
How long is the defendant given to investigate a claim?
3 months to admit or deny
Who can help with the claim form?
Citizens Advice Bureau
How many claim form copies are made?
2, one for defendant one for claimant
What do you do with the claim form?
Send it back to the court with appropriate court fee
How much is the fee for claims over £50,000?
£500
How long can parties postpone proceedings?
1 month
Why would parties postpone proceedings?
ADR (alternative dispute resolution)
Why was Woolf keen on ADR?
More time for courts to focus on complex cases
What did ‘Halsey V Milton Keynes General NHS Trust 2004’ say?
Parties cannot be forced to use ADR as it contravenes their right to a fair trial
What are the 2 main courts in the civil procedure?
County court & high court
A claim for £25,000 or less is started in which court?
County
Larger claims are started in which court?
County or High
Personal injury claims up to £50,000 are started in which court?
County
Defamation claims MUST be started in which court?
High
Can a case be transferred courts?
Yes if neccasary
What are the 3 types of track?
Small claims, fast, multi
When do you use the small claims track?
Claims under £5000 (personal injury and housing limit is £1000)
When do you use fast track?
Straightforward disputes between £5000-£25000. Heard within 30 days and only 1 expert witness
When do you use multi track?
Cases over £25000 and complex cases under £25000
Who makes the decision about which track you use?
District judge in county court or procedural judge in high court
How do judges make the track decision?
Both parties fill out an allocation questionnaire
What are the defendants options after getting a claim form through?
Admit and pay in full. Dispute the claim and send an acknowledgement of service within 14 days, this lets you add another 14 days to serve a defence
What in an order in default?
Defendant does neither and claimant asks court to send an order that he pays the money
What type of cases are usually heard in county court?
Contract law cases, personal injury, divorce etc
What cases do small claims courts hear?
Claims to the value of £5000 (discourage the use of lawyers)
What are the 3 divisions in the high court?
Queens Bench Division, Chancery Division & Family Division
What cases are heard in QDB?
Contract and tort cases
What cases are heard in chancery division?
Insolvency, enforcement of mortgages, trust property, copyright etc
What cases are heard in family division?
Wardship cases, relating to Children Act 1989, marriage etc
What are the advantages of the system? (7)
Flexibility, speeds up, costs down, control of lawyers, burden off county court, co-operation between parties increases and waiting lists are dwindled down
Why are the cases flexible?
They are allocated in terms of complexity
Why are the cases sped up?
Can be a strict timetable
How is there a control of lawyers?
To stop them from causing deliberate delays
Why is the burden taken off the county court?
Small claims court’s level has increased to £5000
What are the disadvantages of the system? (6)
Old terminology has simply been replaced with new terminology, many cases are settled before trial, judges are not familiar with case management, delays remain the same, expensive allocation fees, pre-action protocols have increased delays
Who is ADR favoured by?
Government and judges
What does the Civil Procedure Rules 1998 allow judges to do?
Refer parties to ADR
What are the 2 types of ADR?
Negotiation, mediation
What is negotiation?
Parties discuss and come to a conclusion together. You can get a solicitor to negotiate on your behalf
What is mediation?
A neutral mediator helps parties reach a solution. Consult between each party and find a common ground
What does the neutral mediator act as?
A facilitator as they do not put forward their own views
When is mediation only suitable?
If there is some hope that parties will co-operate
What is the more formal method of mediation?
Formalised settlement conference
What is formalised settlement conference?
Involves a mini-trial where each side presents its case to a panel composed of 1 decision making executive from each party and a neutral mediator
What happens after each party presents their case?
The executives and mediator evaluate and try to come to an agreement, if the executives cannot agree the mediator negotiates between the 2
What is the main commercial mediation service?
Centre for Dispute Resolution
Who are mostly members of the centre for dispute resolution?
nearly all of the big London law firms
What are the advantages of mediation? (6)
Decision is more likely to be made on common sense basis, easier for companies to do business in the future, decisions may include agreements for future, non-confrontational in a court room, cheaper, earlier settlements
What are the disadvantages of mediation? (3)
No guarantee it will be solved and you may have to still go to court, additional cost and delay, mediations may be controlled by mediator and parties may feel forced
What is conciliation?
A neutral party helps resolve the dispute, the conciliator will play a more active role and suggest a possible basis for a settlement
What are the advantages and disadvantages of conciliation?
Almost the same as mediation
What is arbitration?
Governed by Arbitration Act 1996. Voluntary submission by the parties to a dispute to the judgement of some other person rather than a judge
How is arbitration usually settled?
Usually in writing
When can the ‘Agreement to Arbitrate’ be made?
At any time - made before a dispute arrises or when the dispute becomes apparent
What is a ‘Scott v Avery clause’?
Contract where parties agree that in a dispute it will be settled by arbitration
What does the Arbitration Act 1996 state?
Parties are free to agree number of arbitrators and if they do not agree they only have 1
How can you present your arbitration hearing?
Paper or orally
What is the arbitrator’s decision called?
An award
What are the advantages of arbitration? (7)
Parties may decide on own arbitrator, if you use a technical expert it saves costs of expert witnesses, hearing, time and place are arranged to suit parties, procedure is flexible, no publicity, quicker, cheaper
What are the disadvantages of arbitration? (4)
No legal aid available, unexpected legal point may be raised that you need an expert judge for, professional arbitrator fees are high, process is not always quick
What are tribunals?
Act as ‘specialist courts’ for disputes in specialised areas
How did tribunals evolve?
As a way of dealing with the increase of legislation created by welfare state
What are the 3 types of tribunals?
Administrative - hear disputes between individuals and the state, domestic - Disputes within private bodies (general medical council), employment - between employers and employees
How many people does a tribunal usually consist of?
3, one neutral chairperson and 1 representative from each side
What are tribunals frequently seen as?
Alternative to the courts
What did The Franks Committee in 1957 recommend about tribunals?
The process should be an example of ‘openness, fairness and impartiality’
What did The Council on Tribunals 1958 establish?
To supervise and review tribunal procedures
What was the report Sir Andrew Leggatt released in 2000?
Tribunals for Users - One system, One service
What did Sir Andrew Leggatt’s report criticise?
That the tribunal system lacked independence, coherence and were not user friendly
What did Sir Andrew Leggatt’s report recommend?
There should be 1 single tribunal service, should be organised into divisions grouping together similar tribunals, 1 single route of appeal
What did the ‘Tribunals, Courts and Enforcement Act 2007’ implement?
Many of the Leggatt reforms. Only 2 tribunals now
What are the 2 tribunals?
First Tier Tribunals and Upper Tier Tribunals
What do first tier tribunals do?
Consist of different chambers with similar procedures, include Health, Education and Social Care Chamber
What do upper tier tribunals do?
Consist of 4 chambers (Administrative Appeals, Tax and Chancery, Lands and Asylum and Immigration)
What is the upper tier tribunals responsible for?
Hearing appeals and there is a further right of appeal to the Court of Appeal
Who appoints judges in the new system?
Judicial Appointments Commission
Who assigns judges to which chamber?
Senior President of Tribunals
Who has replaced the Council on Tribunals?
The Administrative Justice and Tribunals Council
What are the advantages of tribunals? (5)
Cost (cheaper as parties represent themselves), Expertise (at least 1 member will be an expert in this field) Speed (impose strict timetables heard within 1 day) Formality (a lot less formal, private) Independence (fairier)
What are the disadvantages of tribunals? (4)
Lack of funding (not available in many cases) Delay (complex nature so many delays) Lack of Precedent (unpredictability of outcome of cases) Intimidated parties (they have no legal representation)
Who hears fast track cases?
District Judge then appeal heard by Circuit Judge
Who hears fast track cases?
Circuit Judge the appeal heard by High Court Judge
Who hears multi track cases?
Heard in County Court either by Circuit or District Judge then appeal goes to Court of Appeal
How do you appeal from the small claims court?
Appeal is heard by next court up in heirachy
You can appeal to the Court of Appeal in exceptional cases if conditions meet what?
s55 Access to Justice Act 1999 (if appeal would raise an important point of principle or if there is another compelling reason for Court of Appeal to hear it
Where do appeals from the high court go to?
The Court of Appeal
What is a leapfrog appeal?
An appeal straight to the supreme court under the Administration of Justice Act 1969
When is a leapfrog appeal allowed?
On a point of law of general public importance
Can you further appeal to the supreme court?
Yes if there is a point of law of general public importance
What permission do you need for a further appeal?
Supreme court and court of appeal
When can a case be refereed to the European Court of Justice?
If a point of European law is involved
Who can appeal to the ECJ?
Any court, any appeals from the supreme court must be refereed to the ECJ
