The Legal System - civil courts and other forms of dispute resolution Flashcards
What are civil courts?
They deal with non criminal matters, such as contract, tort and human rights issues
Designed to deal with disputes between individuals and/or businesses
What are the two key civil courts?
County and High court
What does jurisdiction mean?
The power each court has to deal with certain types of case
Jurisdiction of civil courts - county court
(Hears 3 things)
The county court deals with the majority of civil matters
It hears:
- contract disputes (businesses trying to recover money they are owed)
- tortious (civil wrong) actions - landowners seeking to prevent trespass issues
- compensation claims for injuries to claimants
Jurisdiction of the high court
(what are the three divisions and what do they each hear)
High court has three divisions
Kings Bench Division hears…
- contract cases, e.g failure to pay for goods and breach of contract
- tort cases e.g defamation, trespass, negligence
- judicial review actions
Chancery Division hears…
- specialist civil case which include company law, patent and contentious probate
- professional negligence cases
- competition law cases
Family Division hears…
- family-related cases
- cases involving children under the children act 1989
- wardship cases involving custody and day to day care of minors
Describe and explain what a pre action protocol is
First step to take before issuing any court claim is to follow an appropriate pre action protocol
Explaining the conduct and set out steps the court would normally expect parties to take before starting any court action
Aim - ensure that as many of the problems as possible can be resolved without the need for court hearing
Issuing a claim
If a dispute cannot be settled, the claimant can issue proceedings by completing N1 form and a paying fee (the amount of the fee will depend on amount being claimed)
An N1 claim form has to be completed with the name and addresses of the parties, brief details of the research for the claim and the amount of money being claimed
Defending a claim
Court will generally send, or serve, the claim on the defendant who then has a choice of actions
- Admit the claim, pay full amount to claimant/court. If this option is chosen the case will end
- Admit the claim, pay instalment. If this option is accepted by claimant, case will end when full amount has been paid
- Dispute the claim and file a defence setting out why the claim should not be paid, either in full/part
- File an acknowledgement of service confirming receipt of the claim form but asking for time to file a defence
If defendant fails to respond when receiving the claim - claimant can apply for judgment in default - claim is ‘won’ and an attempt can be made to force the defendant to pay the sum claimed
If claim is defended a judge must allocate it to an appropriate case management track for it to be dealt with in the most just and cost effective way
Explain the small claims track
- less than £10,000
- the claim will be heard by a district judge and lawyers are not encouraged
- county court
- the time allocated to a hearing will be a max of 2-3 hrs and each party will be allowed a limited n.o of witnesses
Explain the fast track
£10,000 - £25,000
A case allocated to this track will have a strict timetable set at a max of 30 weeks. If parties do not follow the timetable - the claim can be thrown out/judgment in default can be awarded
Hearing will be a max one day in open court, limited n.o of witnesses called
Usually heard by circuit judge
Each of the parties can be represented by a lawyer
Explain the multi track
Usually allocated to the county court
Circuit judge
Case will be strictly case-managed by the circuit judge, who sets a strict timetable, disclosure of relevant documents, n.o of witnesses and how long the case will last
If the case involves complicated points of law/evidence/involves for more than 50K in values, it can be passed up to the high court (high court judge)
Appeals and appellate courts
If either party in a case is dissatisfied with the decision made by the judge at first instance, then it is possible to appeal
First appeal from a decision of the small claims court/fast track is heard by a next level judge. If the case was first heard by district judge, appeal will be to circuit. First heard by circuit, appeal is to high court judge
Possible for a second appeal from decision of a circuit /high court judge to go to court of appeal, but this would be in exceptional circumstances and only with CoA’s permission
Appeal from a decision of the multi track(district/circuit judge) is to the CoA
Appeal from high court is to CoA or rare occasion to the supreme court (leap frog) where point of general public importance is present
Employment tribunals (resolving dispute without going to court)
Specialist employment ‘courts’ that deal with such issues outside the civil courts system
Deal with issues such as a claim of unfair dismissal, discrimination in the workplace/redundancy
Employment tribunal sits in a separate building and has a set process, less formal than court
Parties can represent themselves, have an official in their union represent them, or use a lawyer
What are the four types of ADR
Negotiation
Mediation
Conciliation
Arbitration
Describe negotiation as a type of ADR
Most basic form of ADR
- where an individual attempts to resolve an issue directly, privately and possibly face to face with the other party
- If the negotiation is carried out by the parties, it should not cost them anything, but involvement of lawyers will inevitably involve cost
Examples include; noise caused by neighbours, returning faulty goods to a shop, receiving poor service from tradesperson
Describe mediation as a type of ADR
Slightly more formal than negotiation, but still relatively informal method of dispute resolution
- where a neutral third party attempts to resolve the issue with both parties, without giving their opinion, unless asked to do so
- parties have control over the process, so they can stay as long as they wish and can withdraw at any time
- a successful mediation depends on both parties embracing the concept and actively participating.
- In the end it is hoped the parties will reach a compromise and agreement acceptable to both parties
Examples include; businesses negotiating or renegotiating contracts, marriage guidance to avoid separation/divorce
Describe conciliation as a type of ADR
It is a form of mediation
- where a third party is active in raising the ideas for compromise between the parties in dispute
- parties still have control over the process and may withdraw at any time
Examples include: disputed access to goods and services by disabled people, cases of alleged discrimination, some employment disputes, some family law matters involving the family division of the high court
- ACAS, tries to encourage the parties in an employment dispute to reach settlement before a claim can be issued in an employment tribunal
Describe arbitration as a type of ADR
Where both parties voluntarily agree to let their dispute be left to the judgment of a neutral arbitrator. The arbitrator is impartial - they don’t take sides but hear all of the arguments and make a decision based on the evidence
There are 2 grounds for appeal 1) arbitrator got the law wrong 2) arbitrator did not follow the correct procedure
Can vary in formality…
- Can be very informal, paper base hearing (parties send their written points and the arbitrator makes their decision ‘award’ based on reading the documents
- Can be almost ‘court like’, with both parties presenting their evidence and the arbitrator making the decision
Before arbitration is used, both sides must agree that the arbitrator’s decision will be binding
Examples include:
- package holiday contracts
- disputes between employers and employees using ACAS
What are 4 advantages of using civil courts
Fair process
Outcome is legally binding
Legal expertise
Parties have thee right to appeal against the decision of court
Explain why an advantage of using civil courts is that judges are impartial
Using civil courts is fair because judges must be impartial
- Meaning everyone is treated the same way
- Judges control court proceedings
- To resolve a civil dispute, using a civil court allows the case to be allocated the most suitable track
- The parties can also appeal if they are not happy with the judge’s decision, meaning civil courts are procedurally just
Explain why an advantage of using civil courts is that the outcome is legally binding
Meaning that the award is enforceable through the courts decisions made and cannot be argued with unless a party chooses to appeal
- not the case for most forms of ADR
- legal aid is available to those on low incomes and this can support them through their case, allowing more than just wealthy people to have their cases heard and addressed, in ADR, no legal aid is available
- The binding nature of court proceedings encourages the parties to negotiate seriously and look to settle cases where possible
Explain why an advantage of using civil courts is legal expertise
Those sitting in the county and high court have acquired legal expertise through years of experience regarding civil disputes, the law and the legal system
- this means that if a point of law does arise then it can be solved quickly. ensures consistency and efficiency
Explain why an advantage of using civil courts is that the parties have a right to appeal against the decision of the court
This is an advantage compared to negotiation, mediation or conciliation where no appeal is available
However if the party that appeals is unsuccessful they are bound to comply with the courts decision
What are the 4 disadvantages of using civil courts
Expensive
Long and time consuming process
Can damage future relationships
Uncertainty
Explain why a disadvantage of using civil courts is that it is expensive
Using civil courts is expensive and the cost of going to court might be higher than the amount actually being claimed
Bringing a claim to the high court can cost hundreds of thousands of pounds especially since lawyers are needed and the fees for legal professionals are very expensive.
If a party loses they may also have to pay the other side costs
Explain why a disadvantage of using civil courts is that it is very long and time consuming
Pre-trial procedure involves a lot of steps e.g claim forms, response from D, allocation e.t.c.
Usually a wait of a year before case is even heard. Adds to cost. ADR would be quicker and easier to use
Some complicated cases may take several years to be resolved
Explain why a disadvantage of using civil courts is that it can damage future relationships
Taking someone to court damages future relationships, court room is very adversarial and can cause conflict between parties, damaging any hope of maintaining a future relationship
- whether that is a business or social one, using a court straight away shows that a party is unwilling to try any other option to reach a compromise
- such as mediation and do not care for preserving future business or social relationships, it’s much easier and simpler to use a form of ADR to solve such matters
Explain why a disadvantage of using civil courts is that it can be uncertain
Taking a case to court carries significant uncertainty with it
There is no guarantee of winning at trial, no matter how strong a case may look on paper
In addition, the fact that the loser pays the winner’s costs makes it difficult to know in advance the likely cost of a case
What are the advantages of negotiation as a form of ADR
It can be straightforward contact between the parties
Low or no cost - no need for lawyers
The parties themselves are in control
Relationships between the parties are preserved
Continued business relationship
What are the disadvantages of negotiation as a form of ADR
One of the parties may not be prepared to negotiate with the other
One of the parties may be hostile towards the other
Either party may believe they are ‘right’ and not prepared to settle
Court proceedings may be the only way to resolve the dispute
What are the advantages of conciliation as a form of ADR
Cheaper than taking a court case
The parties have some control choosing the conciliator and the process
Future business relationship can be preserved
What are the disadvantages of conciliation as a form of ADR
The conciliator may force a resolution on one or both of the parties
The process may not bring about a resolution
The result may not be binding on one or both parties
What are the advantages of mediation as a form of ADR
Cheaper than a court case
The parties are in control over the process
Future business and personal relationships can be maintained
What are the disadvantages of mediation as a form of ADR
One of the parties may be unwilling to take part in the process
The parties may be unwilling or unable to reach a settlement
The result may not be binding on one or both the parties
What are the advantages of arbitration as a form of ADR
Cheaper than a court case
The arbitrator will be qualified and experienced
The arbitrator’s decision is final and binding
The arbitrator’s decision can be enforced in court
What are the disadvantages of arbitration as a form of ADR
The process can be formal and complicated
It is likely to be more expensive than other forms of ADR
It is not a suitable process if there is a complicated point of law involved
In general what are the advantages of ADR
Using a method of ADR is less formal than using courts
- negotiation can involve just the parties themselves
- mediation and conciliation, the parties are encouraged to reach a settlement themselves
- in arbitration, the parties can set the form of the process
Lawyers are not encouraged as:
- the processes are flexible and less formal
- there is no rule that the loser pays winner’s cost
Meaning lower costs for the parties and less confrontation throughout the process - no winner/loser situation, parties can continue a personal/business relationship
In general what are the disadvantages of ADR
No funding is available for claimants using ADR- may put an unrepresented claimant at a disadvantage in arbitration and employment, where a business or employer is likely to be legally represented
If a claim is settled using one of the methods of ADR, the claimant is likely to receive lower compensation than may be awarded by court
Limited rights of appeal for most forms:
- arbitration, an appeal can only be made on the grounds of serious irregularity
- employment tribunals, an appeal can only be made if there is a point of law involved
Any appeal is likely to require a lawyer and involve more costs for a claimant
Advantages of employment tribunals
Claims heard by specialist panel
The hearing will be often heard without public or press present - ensure confidentiality for both parties
The hearings will generally be informal and short - less than a day in length
Disadvantages of employment tribunals
A claim has to be issued quickly after the issue arises
Funding is not available. An employee may be at a disadvantage against an employer who can pay for legal representation
There may be delays in setting hearing dates
