The Civil Process

Question 1

The civil procedure?

Answer 1

Issuing a claim
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Pre-action protocol
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Claim form N1
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Choosing a court
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Tracks
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Allocation of cases
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Defending a claim

Question 2

Issuing a claim

Answer 2

The Civil Procedure Rules 1998 overhauled the civil process and must be followed when issuing a claim, they were implemented along with the Access to Justice Act 1999 following the Woolf Report.

Question 3

Pre-action protocol

Answer 3

Before a claim can begin action they must complete a pre-action protocol, if this is not followed extra costs may be incurred. It states that the defendant must receive a letter explaining how the claim arose, why the other party is deemed at fault and details of any injury or damage. The defendant is then given 3 months to investigate the claim and reply setting out whether liability is admitted or denied and if expert witnesses are to be used.

Question 4

What is the civil court structure?

Answer 4

The Supreme Court
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The Court of Appeal
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The High Court
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The QBD The Chancery Court The Family Court
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The County Court The Small Claims Court

Question 5

Claim form N1

Answer 5

To claim in court you must complete a N1 claim form, you can receive help filling it in from court staff or the CAB. The claimant keeps a copy, the defendants gets a copy and it’s also returned to court with the appropriate fee, which can increase over time. If you are claiming over £50,000 the court fee is £500.

Question 6

Choosing a court

Answer 6

There are two main courts, the county court and the high court. Parties can postpone for up to a month at this point to try and sort it outside of the court using another form of dispute resolution such as ADR. Lord Woolf encouraged ADR as it allows the court to focus on more complex case. In Hayes V Milton Keynes NHS trust 2004, the ECHR said that the parties cannot be forced to use ADR as it contravenes their right to a fair trial. A claim for up to £25,000 must start in the county court, claims larger than £25,000 can start in either court. Personal injury claims for up to £50,000 must start in the county court, defamation claims must start in the high court. For most cases over £25,000 the claimant can choose the most convenient court but must consider how much is being claimed and how complex the case is, the cases may be transferred between the two courts.

Question 7

Tracks

Answer 7

Once a claim is defended the court will allocate the most suitable track, way of dealing with it, there are 3 tracks. The Small Claims Track which deals with claims under £10,000 except for personal injury and housing where the limit is £1,000. The Fast Track which deals with straightforward disputes between £10,000 and £25,000, the case is heard within 30 weeks and the trial is limited to one day and expert witnesses are limited to one, these cases are heard by a Circuit Judge. The Multi-Track which deals with cases over £25,000 or complex cases.

Question 8

Allocation of cases

Answer 8

The decision of what track to use is made by the District Judge in the County court, in the High court it is made by the Master (procedural judge). To help make the decision both parties are sent an allocation questionnaire. Judges can send a case to a track that normally deals with claims of higher value if necessary and they can be sent to a lower value track if both parties agree.

Question 9

Defending a claim

Answer 9

After receiving the claim form there are several options for the defendant, they can admit the claim and pay up in full ending the dispute. Or they can dispute the claim, if he wants to defend the defend the claim he must send an acknowledgement of service (N9) or a defence to the court wishing 14 days of receiving it. If the defendant only send the N9 he has an extra 14 days to send a defence. If the defendant does nothing then the claimant can ask the court to make an order that he pays the money and all the costs are claimed, this is called an order in default. Once a claim is defended the court will allocate the most suitable track.

Question 10

Advantages of the civil procedure?

Answer 10

The multi track system enables flexibility in terms of allocation, they can now be allocated in terms of complexity.
It speeds up the system making it more efficient and cheaper.
Costs have been driven down, the Access to Justice Act restricts prices from being too much by ensuring they are heard within a certain amount of time, they are heard within one day, helping to speed it up and keeps costs down.
There is greater control of ruthless lawyers due to case management, in more complicated cases judges have been made case managers to maximise efficiency and stop lawyers deliberating delays.
The increase in the level of small claims to £5,000 has relieved the burden from the county court.
Words has been simplified to make it easier to understand e.g. Writ to claim form.
Suzanne Burn found that the total volume of litigation has dropped since 1999 and the rate of settlement has increased.
Tony Allen argues that the waiting list are down and cases are reaching trial quicker.
Cooperation between parties is said that have improved.

Question 11

Disadvantages of the civil procedure?

Answer 11

Old terminology has simply been replaced with new terminology, making the system complicated, there were 291 pages of procedure and there are now 2301 pages.
Many cases are settled before trial resulting in needless costs.
Judges are not familiar with case management and have no training on it.
Pre-action protocols have increased delays.
There are expensive allocation fee, claims for up to £25,000 the fee is £225 and for claims over £300,000 the fees are £1530.
Professor Zander argues delays remain the same despite fixed date trials, the reforms only helped to reduce the problems caused by lawyers not in the court administration process. He also argues that in some cases their is insufficient time for legal professionals to prepare cases.

Question 12

What is ADR?

Answer 12

There is an increase awareness of using alternative dispute resolution, it is favoured by the government and judges. The Civil Procedure rules 1998 allows judges to stop a case a refer the parties to ADR, mostly in areas of family and employment. An example in ACAS for employment disputes.

Question 13

What is mediation?

Answer 13

This is where a neutral mediator helps the parties to reach a compromise solution and acts as a ‘go between’. They consult with each party and see how much common ground there is between them, they a passive and don’t say their opinion. They are to act as a facilitator so an agreement is reached. It is only suitable for parties who will cooperate, companies are most likely to benefit as they are used to negotiating contracts. Mediation takes many form and the parties choose he method meaning they are still in control.

Question 14

What is negotiation?

Answer 14

This resolves disputes by discussing, bargaining and coming to a conclusion with the other party. You can get a solicitor to negotiate on your behalf, once proceedings have started lawyers can continue to negotiate on the clients behalf. It’s reflected in the large number of out of court settlements.

Question 15

What are commercial mediation services?

Answer 15

There is a growing number of commercial mediation services one of the main ones is the Centre for dispute resolution, many important companies are members including nearly all the big London law firms.

Question 16

What is a formalised settlement conference?

Answer 16

This is a more formal method of mediation, with a mini trial where each side presents its case to a panel of decision making executives from each party and a neutral advisor. The executive and advisor will evaluate the two sides and try to come to an agreement. If they can’t agree the neutral advisor will act as a mediator. Even if an agreement is not reached the issues have been narrowed down speeding up further action or a court case.

Question 17

What is online dispute resolution?

Answer 17

This has become popular and an increasing number of website are offering mediation services.

Question 18

What is conciliation?

Answer 18

This is similar to mediation but a neutral party helps to resolve the disputed. The main difference is that the conciliator will play more of an active role, he will suggest grounds for compromise and a possible basis for settlement. In employment disputes ACAS can give an impartial opinion on the legal position. It does not necessarily lead to a resolution and it may be necessary to continue to court.

Question 19

Advantages of ADR?

Answer 19

• the decision is likely to be made on a common sense basis.
• it is easier for companies to continue to do business with each other after and the decision may include agreements for future business.
• it avoid the adverbial nature of the court room and is non confrontational.
• it’s cheaper and each party pays itself and can be cost effective in commercial settlements.

Question 20

Disadvantages of ADR?

Answer 20

• there is no guarantee that the matter will be resolved and you may still end up in court.
• Hazel Genn found that the amounts paid in mediated settlements were lower than the amounts agreed in other settlements and significantly lower than amounts in courts.
• Genn felt that mediations were controlled by mediators who can force settlement.
• if you end up going to court then you end up with additional costs and delays.

Question 21

What is arbitration?

Answer 21

Private arbitration is governed by the Arbitration Act 1996, it’s a voluntary submission by the parties to a dispute to the judgement of some other person other than a judge. The agreements are usually in writing and the precise way in which it is carried out is almost left entirely to the parties.

Question 22

The agreement to arbitrate?

Answer 22

The agreement to go to arbitration can be made by any party at any time. It can be made before a dispute arises, when the dispute becomes apparent or after he dispute arises. Many commercial contracts include a Scott V Avery Clause, this is in the parties contracts where the parties agree that in the event of a dispute they will settle it by arbitration.

Question 23

What is the arbitrator?

Answer 23

The Arbitration Act 1996 state that the parties are free to agree on he number of arbitrators. If the parties can’t agree on the number, one arbitrator will be appointed. The act says the parties are free to agree on the procedure for appointing an arbitrator.

Question 24

The arbitration hearing?

Answer 24

The details of the procedure are left to the parties and there are many possible forms of hearing. Some opt for a ‘paper hearing’ where both sides put their case in writing and submit it with other relevant documents to the arbitrator who makes the decision. Alternatively parties may send all the papers to the arbitrator and have a hearing at which each side makes oral submissions and call witness. The time, place and date are decided by the parties. The arbitrators decision is also known as a reward and is binding and enforceable by the courts.

Question 25

Advantages of arbitration?

Answer 25

• if a technical expert is used it saves the expense of an expert witness and the time that would be used in explaining it to a judge.
• parties can choose their own arbitrator and can decide to use a technical expert, lawyer or arbitrator.
• the process is cheaper than court.
• the dispute is resolved more quickly than going to court and is dealt with in private.
• the hearing time and place are arranged to suit both parties.
• the hearing procedure is flexible and the parties can choose that which is most suited to them, this will result in a more informal and relaxed procedure.
• the award is final and enforceable by the courts.

Question 26

Disadvantages of arbitration?

Answer 26

• there is no legal aid available meaning parties may be on unequal footing depending on how much money they have.
• an expected legal point may arise which requires a lawyer.
• professional arbitrators fees are expensive.
• it can be expensive if parties opt for a formal hearing with a lawyer.
• delays for commercial and international arbitration can be nearly as long as those at court.
• the process is not always quick. Alison Halford bought proceedings for sex discrimination against the Police Authorities and it was more than two years form the start to the conclusion of the case.
• the chairman may not always be as impartial as desired.

Question 27

Appeals from the county court?

Answer 27

Appeal routes are set out in Part 52 of the Civil Procedure Rules 1998.

For fast track cases heard by a district judge the appeal is heard by a Circuit Judge.
For fast track case heard by a circuit judge, the appeal is heard by a high court judge.
For multi track claims heard by either the circuit or district judge the appeal goes to the court of appeal.

Question 28

Appeals from the small claims court?

Answer 28

The right to appeal was bought in Oct 2000 in order to comply with the ECHR.

The appeal route is the same as for fast track cases, an appeals is heard by the next judge up in the hierarchy. So if a case is heard by the district judge, the appeal is heard by the circuit judge and if a case is heard by the circuit judges the appeal is heard by a high court judge.

Question 29

Second appeals?

Answer 29

In exceptional cases it is possible for a further appeal to the Court of Appeal, provided certain conditions are met under Section 55 of the Access to Justice Act 1999. Section 55 states that an appeal to the court of appeal cannot be made unless it considers that; the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.

Question 30

Appeals from the high court?

Answer 30

Appeals usually go to the court of appeal but in rare cases there may be a ‘leapfrog appeal’ straight to the Supreme Court under the administration of Justice Act 1969. But such an appeal is only allowed on a point of law of general public importance and permission from the Supreme Court is needed.

Question 31

Further appeals?

Answer 31

There is a possibility of a further appeal to the Supreme Court but only on a point of law of general public importance and permission from the Supreme Court of the court of appeal is needed.
If a point of EU law is involved the case may be referred to the ECJ under article 267 TFEU. It can be made from any court but the Supreme Court must refer a point of EU law to the ECJ.

Question 32

What are tribunals?

Answer 32

Tribunals are an important part of the legal system and acts as a specialist court for disputes in specialised areas. Employment, immigration and social security disputes are often resolved by tribunals. They evolved as a way of dealing with the increase of legislation created by the welfare state.

Question 33

What are the types of tribunals?

Answer 33

There are 3 types of tribunals;

• administrative, these tribunals hear disputes between individuals and the state, examples include social security, mental health and immigration.
• domestic, these refer to inter tribunals used for disputes within private bodies such as the Law Society and the General Medical Council.
• employment, these deal with disputes between employers and employees.

Question 34

What’s the composition of a tribunal?

Answer 34

A tribunal usually consists of a neutral chairperson and one representative form each side.

Question 35

What’s the history of tribunals?

Answer 35

1957 - the franks committee, the recommended that the tribunal procedure should be one of openness, fairness and impartiality. This was implemented in the Tribunals and Inquiries Act 1958.
1958 - the a Council on Tribunals was established to supervise and review tribunal procedures. This body dealt with complaints and submitted recommendation for reform, it was heavily criticised as being a ‘watchdog with no teeth’ as it had little powers to make change.
2000 - Sir Andrew Leggatt released an important report entitled ‘Tribunals for Users - One System’. His report was very critical of the system stating that it lacked independence, coherence and was not user friendly. It recommended; a single tribunal service to be responsible for the administration of all tribunals, that tribunals should be organised into divisions grouping together similar tribunals, that the system should be user friendly and there should be a single route for appeal. This lead to the Tribunals, Courts and Enforcement Act 2007.

Question 36

What is the tribunals, courts and enforcement act 2007?

Answer 36

This act implemented may of the Leggatt reforms, the entire system has been radically streamlined as there are now only two tribunals, first tier tribunals and upper tribunals.
The first tier tribunals consists of different chambers with similar procedures and jurisdiction, some of these include, the health, education and social care chamber and the taxation chamber. The upper tribunals consists of four different chambers including the Administrative Appeals Chamber, the tax and Chancery Chamber, the Lands Chamber and the Asylum and Immigration Chamber. It is responsible for hearing appeals and there is a further right to appeal to the court of appeal.

Question 37

How does the new system work?

Answer 37

All members of judges working in a new system will be appointed by the Judicial Appointments Commission and therefore recognised as judges. The whole system is headed by the senior president of tribunals who is responsible for assigning judges to the chamber, looking after the general welfare and assisting with issues that may arise. The president has the power to issue practice directions in order to help tribunal judges maintain a unified procedure across all the chambers.

Question 38

The Administrative Justice and Tribunals Council?

Answer 38

This has replaced the Council on Tribunals and it has much more power in terms of reviewing and keeping it under control. It also advises the government on future reforms of the Tribunal Service.

Question 39

What’s the difference between tribunals and arbitration?

Answer 39

Tribunals are frequently seen as an alternative to the courts but if the case fails in the tribunal system there is no redress to the court. In arbitration if the case fails the parties still have the option of seeking redress within the court system.

Question 40

Advantages of tribunals?

Answer 40

• cost: it’s cheaper to pursue a claim in tribunal as they are encouraged to represent themselves.
• expertise: at least one member of the tribunal will be an expert in the relevant field so it will save time explaining technicalities to a judge in court.
• speed: there is a duty on the tribunal judges to take on case management duties so impose strict timetables to ensure they are heard within 1 day.
• formality: they are less formal than the courts but not as informal as others and will benefit from a private hearing and maintaining relationships.
• independence: the involvement of the Judicial Appointments Commission in appointing judges makes the system fairer and more transparent.

Question 41

Disadvantages of tribunals?

Answer 41

• lack of funding: legal funding is not available in many cases which can lead to unequal footing.
• delay: if the case is of a complex nature then there can be a delay in getting the case heard.
• lack of precedent: tribunals do not operate a strict system of precedent so there is sometimes an element of unpredictability in outcomes of cases.
• intimidated parties: there is still a problem with parties feeling intimidated and daunted of taking s case to court, especially without legal help.