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Law AS - Debbie LA1 > The Civil Process > Flashcards

The Civil Process Flashcards

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1
Q

Why were the civil procedure rules 1998 implemented?

A

Lawyers were being ruthless and charging too much

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2
Q

What are the civil procedure rules 1998

A

Ensuring a case is dealt with justly

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3
Q

What was the act implemented along with?

A

Access to Justice Act 1999

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4
Q

What were the acts made in response to?

A

Woolf Report

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5
Q

Why was the woolf report commissioned?

A

To research problems in the court system

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6
Q

What did woolf criticize?

A

Long delays and unacceptable expenses

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7
Q

What did woolf accuse lawyers of?

A

Unnecessarily delaying cases to drive up fees

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8
Q

What did woolf say about the number of expert witnesses?

A

Too many, added costs

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9
Q

Civil procedure rules 1998 ensured parties must follow what?

A

Pre-action protocol and claim form

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10
Q

What does the protocol state?

A

Defendant must receive a letter explaining how claim arrises, what fault they have done and any details of personal injury etc

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11
Q

How long is the defendant given to investigate a claim?

A

3 months to admit or deny

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12
Q

Who can help with the claim form?

A

Citizens Advice Bureau

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13
Q

How many claim form copies are made?

A

2, one for defendant one for claimant

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14
Q

What do you do with the claim form?

A

Send it back to the court with appropriate court fee

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15
Q

How much is the fee for claims over £50,000?

A

£500

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16
Q

How long can parties postpone proceedings?

A

1 month

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17
Q

Why would parties postpone proceedings?

A

ADR (alternative dispute resolution)

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18
Q

Why was Woolf keen on ADR?

A

More time for courts to focus on complex cases

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19
Q

What did ‘Halsey V Milton Keynes General NHS Trust 2004’ say?

A

Parties cannot be forced to use ADR as it contravenes their right to a fair trial

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20
Q

What are the 2 main courts in the civil procedure?

A

County court & high court

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21
Q

A claim for £25,000 or less is started in which court?

A

County

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22
Q

Larger claims are started in which court?

A

County or High

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23
Q

Personal injury claims up to £50,000 are started in which court?

A

County

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24
Q

Defamation claims MUST be started in which court?

A

High

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25
Q

Can a case be transferred courts?

A

Yes if neccasary

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26
Q

What are the 3 types of track?

A

Small claims, fast, multi

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27
Q

When do you use the small claims track?

A

Claims under £5000 (personal injury and housing limit is £1000)

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28
Q

When do you use fast track?

A

Straightforward disputes between £5000-£25000. Heard within 30 days and only 1 expert witness

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29
Q

When do you use multi track?

A

Cases over £25000 and complex cases under £25000

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30
Q

Who makes the decision about which track you use?

A

District judge in county court or procedural judge in high court

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31
Q

How do judges make the track decision?

A

Both parties fill out an allocation questionnaire

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32
Q

What are the defendants options after getting a claim form through?

A

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

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33
Q

What in an order in default?

A

Defendant does neither and claimant asks court to send an order that he pays the money

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34
Q

What type of cases are usually heard in county court?

A

Contract law cases, personal injury, divorce etc

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35
Q

What cases do small claims courts hear?

A

Claims to the value of £5000 (discourage the use of lawyers)

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36
Q

What are the 3 divisions in the high court?

A

Queens Bench Division, Chancery Division & Family Division

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37
Q

What cases are heard in QDB?

A

Contract and tort cases

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38
Q

What cases are heard in chancery division?

A

Insolvency, enforcement of mortgages, trust property, copyright etc

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39
Q

What cases are heard in family division?

A

Wardship cases, relating to Children Act 1989, marriage etc

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40
Q

What are the advantages of the system? (7)

A

Flexibility, speeds up, costs down, control of lawyers, burden off county court, co-operation between parties increases and waiting lists are dwindled down

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41
Q

Why are the cases flexible?

A

They are allocated in terms of complexity

42
Q

Why are the cases sped up?

A

Can be a strict timetable

43
Q

How is there a control of lawyers?

A

To stop them from causing deliberate delays

44
Q

Why is the burden taken off the county court?

A

Small claims court’s level has increased to £5000

45
Q

What are the disadvantages of the system? (6)

A

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

46
Q

Who is ADR favoured by?

A

Government and judges

47
Q

What does the Civil Procedure Rules 1998 allow judges to do?

A

Refer parties to ADR

48
Q

What are the 2 types of ADR?

A

Negotiation, mediation

49
Q

What is negotiation?

A

Parties discuss and come to a conclusion together. You can get a solicitor to negotiate on your behalf

50
Q

What is mediation?

A

A neutral mediator helps parties reach a solution. Consult between each party and find a common ground

51
Q

What does the neutral mediator act as?

A

A facilitator as they do not put forward their own views

52
Q

When is mediation only suitable?

A

If there is some hope that parties will co-operate

53
Q

What is the more formal method of mediation?

A

Formalised settlement conference

54
Q

What is formalised settlement conference?

A

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

55
Q

What happens after each party presents their case?

A

The executives and mediator evaluate and try to come to an agreement, if the executives cannot agree the mediator negotiates between the 2

56
Q

What is the main commercial mediation service?

A

Centre for Dispute Resolution

57
Q

Who are mostly members of the centre for dispute resolution?

A

nearly all of the big London law firms

58
Q

What are the advantages of mediation? (6)

A

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

59
Q

What are the disadvantages of mediation? (3)

A

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

60
Q

What is conciliation?

A

A neutral party helps resolve the dispute, the conciliator will play a more active role and suggest a possible basis for a settlement

61
Q

What are the advantages and disadvantages of conciliation?

A

Almost the same as mediation

62
Q

What is arbitration?

A

Governed by Arbitration Act 1996. Voluntary submission by the parties to a dispute to the judgement of some other person rather than a judge

63
Q

How is arbitration usually settled?

A

Usually in writing

64
Q

When can the ‘Agreement to Arbitrate’ be made?

A

At any time - made before a dispute arrises or when the dispute becomes apparent

65
Q

What is a ‘Scott v Avery clause’?

A

Contract where parties agree that in a dispute it will be settled by arbitration

66
Q

What does the Arbitration Act 1996 state?

A

Parties are free to agree number of arbitrators and if they do not agree they only have 1

67
Q

How can you present your arbitration hearing?

A

Paper or orally

68
Q

What is the arbitrator’s decision called?

A

An award

69
Q

What are the advantages of arbitration? (7)

A

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

70
Q

What are the disadvantages of arbitration? (4)

A

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

71
Q

What are tribunals?

A

Act as ‘specialist courts’ for disputes in specialised areas

72
Q

How did tribunals evolve?

A

As a way of dealing with the increase of legislation created by welfare state

73
Q

What are the 3 types of tribunals?

A

Administrative - hear disputes between individuals and the state, domestic - Disputes within private bodies (general medical council), employment - between employers and employees

74
Q

How many people does a tribunal usually consist of?

A

3, one neutral chairperson and 1 representative from each side

75
Q

What are tribunals frequently seen as?

A

Alternative to the courts

76
Q

What did The Franks Committee in 1957 recommend about tribunals?

A

The process should be an example of ‘openness, fairness and impartiality’

77
Q

What did The Council on Tribunals 1958 establish?

A

To supervise and review tribunal procedures

78
Q

What was the report Sir Andrew Leggatt released in 2000?

A

Tribunals for Users - One system, One service

79
Q

What did Sir Andrew Leggatt’s report criticise?

A

That the tribunal system lacked independence, coherence and were not user friendly

80
Q

What did Sir Andrew Leggatt’s report recommend?

A

There should be 1 single tribunal service, should be organised into divisions grouping together similar tribunals, 1 single route of appeal

81
Q

What did the ‘Tribunals, Courts and Enforcement Act 2007’ implement?

A

Many of the Leggatt reforms. Only 2 tribunals now

82
Q

What are the 2 tribunals?

A

First Tier Tribunals and Upper Tier Tribunals

83
Q

What do first tier tribunals do?

A

Consist of different chambers with similar procedures, include Health, Education and Social Care Chamber

84
Q

What do upper tier tribunals do?

A

Consist of 4 chambers (Administrative Appeals, Tax and Chancery, Lands and Asylum and Immigration)

85
Q

What is the upper tier tribunals responsible for?

A

Hearing appeals and there is a further right of appeal to the Court of Appeal

86
Q

Who appoints judges in the new system?

A

Judicial Appointments Commission

87
Q

Who assigns judges to which chamber?

A

Senior President of Tribunals

88
Q

Who has replaced the Council on Tribunals?

A

The Administrative Justice and Tribunals Council

89
Q

What are the advantages of tribunals? (5)

A

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)

90
Q

What are the disadvantages of tribunals? (4)

A

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)

91
Q

Who hears fast track cases?

A

District Judge then appeal heard by Circuit Judge

92
Q

Who hears fast track cases?

A

Circuit Judge the appeal heard by High Court Judge

93
Q

Who hears multi track cases?

A

Heard in County Court either by Circuit or District Judge then appeal goes to Court of Appeal

94
Q

How do you appeal from the small claims court?

A

Appeal is heard by next court up in heirachy

95
Q

You can appeal to the Court of Appeal in exceptional cases if conditions meet what?

A

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

96
Q

Where do appeals from the high court go to?

A

The Court of Appeal

97
Q

What is a leapfrog appeal?

A

An appeal straight to the supreme court under the Administration of Justice Act 1969

98
Q

When is a leapfrog appeal allowed?

A

On a point of law of general public importance

99
Q

Can you further appeal to the supreme court?

A

Yes if there is a point of law of general public importance

100
Q

What permission do you need for a further appeal?

A

Supreme court and court of appeal

101
Q

When can a case be refereed to the European Court of Justice?

A

If a point of European law is involved

102
Q

Who can appeal to the ECJ?

A

Any court, any appeals from the supreme court must be refereed to the ECJ

Law AS - Debbie LA1 (6 decks)

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