Chapter 1 - Civil courts and other forms of dispute resolution

What is the jurisdiction of the county court?

The county court can try most civil claims of up to £100,000 in value. Typical cases heard in this court include:

-negligence claims where a person has suffering injury or loss as a result of the action to failure of another

-other tort based claims such as nuisance or trespassing

Claims will be heard in open court by a single judge. The judge will read the case papers before the hearing and can hear evidence and legal arguments in court. At the end of the hearing the judge will decide:

- liability

- the compensation payable, if any, or

- any other remedy requested, such as eviction notice, and

- who should pay the costs of the case

The small claims track is a part of the county court and deals with claims of less than £10k. Cases are heard by a district judge and lawyers are discouraged. As a result, there is less legal argument and costs will not be awarded.

What is the jurisdiction of the High court?

As with the country court, claims will be heard in open court by a single judge of the high court. Judges will be assigned to one of the three divisions - Queen's bench, Chancery and Family - and will only hear cases relating to that divisions work. As before, the judge will read the case papers before hearing and can hear evidence and legal arguments in court.

As with county court, at the end of the hearing the judge will decide

- liability

- the compensation payable, if any, or

- any other remedy requested, such as eviction notice, and

- who should pay the costs of the case

What is the Queen's bench division?

The largest of the three divisions. It has the jurisdiction to hear a wide variety of cases including contract and tort claims over £100k in value and smaller claims where there is a complicated issue of law involved

There are several specialist courts of the Queen's Bench Division, including:

- the Administrative Court which hears: applications for judicial review and applications for habeas corpus and case stated appeals in criminal cases, decided in the Magistrates court or Crown court

- Circuit commercial courts

What is the Chancery division?

This court has the jurisdiction to deal with the following types of cases:

- disputes relating to business, property or land where over £100k is in issue

- disputes over trusts

- contentious probate claims

- disputes about partnership matters

Specialist courts of the chancery division include the insolvency and companies list

What is the family division?

Cases in this division are usually heard in private as they are often dealing with sensitive matters. It has the jurisdiction to hear:

- cases where a child is to be made a ward of the court and cases relating to the welfare of children under the Children Act 1989

- appeals from lower courts such as Family Proceedings Courts, which are part of the Magistrates' Court, and complicated family cases transferred from the County Court

- cases with a foreign element such as international child abduction, forced marriage, female genital mutilation and where a divorce has taken place outside England, but the parties are disputed property situated in England

What are the pre-trial procedures?

A court claim should only be considered as a last resort if a negotiated settlement cannot be reached or a form of ADR has failed.

The first step to take before issuing any court claim is to follow an appropriate pre action protocol. They explain the conduct and set out the steps the court would normally expect parties to take before starting any court action.

The aim of pre-action protocol is to ensure that as many problems as possible can be resolved without the needing for a court hearing

How is it decided what court will be used?

Claim less than £10k or £1k in personal injury claim = in the small claims court

Claims less than £100k or £50k in personal injury claim = must be stated in the county court

Claims more than £100k or more than £50k in personal injury claim = can be started in either the county court or more likely, the high court

How is a claim issued?

A claim form N1 has to be completed with the names and addresses of the parties, brief details of the reason for the claim and the amount of money being claimed. The form can be filed at:

- a county court office

- the high court if it is a high value claim

- online, for a debt claim

A fee will be charged for issuing the claim and the amount of the fee depends on the amount being claimed

How does the three track system work?

If a claim is defended, a judge must allocate it to an appropriate case management track for it to be dealt with in the most judge and cost effective way. There are three tracks that a case can be allocated to.

What is the small claims track?

-Claim is worth less then 10,000 (1,000 for personal injury)

-Heard by a district judge and lawyers are not encouraged

-Extension of county court

-Time allocated to the heating will be a maximum of 2-3 hours and each party will be allowed a limited number of witnesses

What is the fast track?

-Claims between £10000 and £25000

-A case allocated to this track will have a strict timetable set at a maximum of 30 weeks. If the parties do not follow the timetable, the claim can be thrown out or judgement in default can be awarded

-The hearing will be a maximum of one day in open court, with a limited number of witnesses called and usually heard by a circuit judge

-Each of the parties can be represented by a lawyer

What is the multi track?

-Claims between £25000 and £50000

-Usually allocated to the county court

-The hearing will take place before a circuit judge

-The case will be strictly case managed by the circuit judge, who sets a strict timetable, the disclosure of relevant documents, the number of witnesses and how long the case will last

-If the case involves complicated points of law or evidence, or involves more than £50000 in value, it can be passed up to the high court

What is an appeal?

If one of the parties is dissatisfied with the decision of the trial judge about liability and/or the amount of compensation awarded, they can appeal.

Where is an appeal heard?

An appeal is usually made to the next highest court in the hierarchy, and heard but a panel of three judges

What does an appeal hearing usually consist of?

It usually consists of legal arguments as to why the original decision should be altered. It is rare for new evidence to be heard and there must be legal grounds for an appeal.

What happens to appeals from the county court?

1. If the original decision was made by a district judge, an appeal will be heard by a single circuit judge of the same court

2. If the original decision was made by a circuit judge, an appeal can be made to a High Court judge of the division that is relevant to the case

3. An appeal can be made directly to the Court of Appeal if the case raises an important point of principle

What happens to appeals from the High Court?

An appeal from the decision of a high court judge will generally be heard by the Court of Appeal. If one of the parties wishes to appeal further, it can be taken to the Supreme Court, but only if the permission is granted by the Court of Appeal.

What are employment tribunals?

Deal with uses such as a claim of unfair dismissal, discrimination in the workplace or redundancy. An employment tribunal sits in a separate building and has a set process, but is less formal than a court.

What are the preliminary matters of employment tribunals?

A claim on an employment issue has to be brought within three months. In most cases, ACAS must be contacted for early conciliation to see if there can be a resolution.

Most claimants obtain advice on the strength of the case before issuing a claim, though it is possible for a claimant to take their own case.

What happens during an employment tribunal hearing?

Held in individual tribunal room and made up of a panel of a judge and a representative from each party.

In the full hearing, evidence is taken on oath.

Hearings are usually quite short as most of the issues will have been identified beforehand and the panel will have read the papers.

What happens to appeals in employment tribunal's?

Either side may appeal within 42 days of the tribunal decision to an Employment Appeal Tribunal, but only on a point of law.

What is negotiation?

Anyone in dispute with another person or business can negotiate to settle the dispute in the easiest and least confrontational way possible.

What ways can negotiation be carried out by?

- Face to face talking

- Writing

- Phone or e-mail

- Any other suitable method

Who can conduct negotiation?

Can be conduced by the parties themselves, their representatives, their lawyers or any combination of these.

What is mediation?

Where a neutral person helps the parties to reach a compromise. The mediator acts as a facilitator, shuttling between the parties to put forward points and opinions.

Who is in control in mediation?

The parties have control over the process, so they can stay as long as they wish and can withdraw at any time. The mediator will not offer an opinion to either party unless asked to do so.

What cases is mediation usually used in?

Often used in family disputes over children and financial issues

What is conciliation?

Is similar to mediation, but the conciliator plays a more active role, discussing the issues with both parties and suggesting grounds for compromise or settlement.

Who is in control in conciliation?

The parties still have control over the process and may withdrawal at any time

What must the parties do in conciliation?

As with mediation, both parties must agree to a final compromise and the process may not lead to a resolution, especially if one or both parties are fixed in their position/

What is arbitration?

Is where both parties voluntarily agreed to let their dispute be left to the judgment of a neutral arbitrator or a panel of arbitrators. The arbitrator will normally have experience in the field of the dispute.

How is the agreement in arbitration provided?

The agreement will usually be in writing, and will be contained in the initial contract between the parties which will be made before any dispute arises.

What are the advantages of the civil courts?

-The case will be presided over by a judge with experience with dealing with complex legal matters

-If there are inaccuracies there is a clear structured appeal route

- A judge will allocate a defended case at an early stage to the most suitable track and court. This minimises delays

-The decision is legally binding and enforceable and the parties are guaranteed a resolution at the end of the hearing

-Court system offers open justice and the public can sit in most cases. This prevents businesses hiding disputes and outcomes that the public should be aware of

-By considering precedent lawyers can give informed advice to clients and due to precedent clients can know the likely outcome of the case before it goes to court

-In some cases a form of funding may be available for the payment of lawyers fees (eg, in personal injury cases where it is possible to have a no-win no-fee arrangement)

What are the disadvantages of the civil courts?

-Cost of the court case can be more then the sum claimed as the loser usually takes on the winners court fees.

-Considerable delay in completing the preliminary stages of a claim. Some may take several years to be resolved

-Expensive: claimants must fund their claims from their own resources

-Complex meaning it is difficult for a claimant to take a case without the assistance of a lawyer due to pre-action protocol and civil procedure rules

-Uncertainty of the outcome and no guarantee of winning until the judge rules

-Using lawyers can lead to greater confrontation between the parties. This can increase delay and costs

What are the advantages of ADR?

-Less formal then using the courts: Negotiation can involve just the parties themselves, mediation and conciliation the parties are encouraged to reach the settlement themselves, arbitration the parties can set the form of the process

-Lawyers are not encourage as: the process it flexible and less formal, no rule for the loser to pay the winners costs (not expensive), the parties could continue to have a personal or business relationship

-Quicker and easier to arrange a resolution then going to court

-If there is a hearing it is unlikely to be publicised.

-Decision does not have to be strictly legal and is more likely to be based on commercial common sense and compromise (preserve relationships)

What are the disadvantages of ADR?

-(Except in tribunals) parties cannot be forced to engage in the process meaning court action may be required to resolve

-If ADR is used the claimant is likely to receive lower compensation than awarded by courts

-No funding is available for ADR so claimants may be at a disadvantage in employment and arbitration tribunals

-If an unexpected legal issue appears in either arbitration or an employment tribunal an un represented claimant may be at a disadvantage and a non-legally qualified arbitrator might not be capable of resolving it

-Proceedings and hearings have a certain formality which may be intimidating for un represented claimants

-Limited appeal rights: arbitration only on grounds of serious irregularity, employment tribunals only when a point of law is involved. Likely to involve a lawyer which is costly

What are the advantages of employment tribunals?

-Claims are heard by a specialist panel

-ACAS will encourage the parties to settle the claim before a hearing

-The hearing will often be heard without publicity which ensure confidentiality

-Hearings are informal and short

-Employee can be represented by a non-lawyer including a trade union representative making it cheaper

-The panel will give a written judgement after the hearing

-Each party will pay their own costs

-Limited appeal rights

What are the disadvantages of employment tribunals?

- A claim has to be issued quickly after the issue rises

- Funding is not available meaning an employee may be at disadvantage against an employer

- It is more formal than other forms of ADR

- Appeals are limited to issues of law

- There may be delays in setting hearing dates

What are the advantages of negotiation?

- Can be by straightforward contact between the parties

- Low or no cost

- Parties themselves in control

- Relationships between the parties are preserved

- Continued business relationships

What are the disadvantages of negotiation?

- One of the parties may not be prepared to negotiate with the other

- One of the parties may be hostile to each other

- Either party may believe they are 'right' and not be prepared to settle

- Court proceedings may be the only way to solve the dispute

What are the advantages of conciliation?

- Conciliator is independent of the parties making them neutral

-Can suggest and advise parties on the offers made by parties throughout.

-Has expert knowledge and experience of the subject under conciliation

-Quicker than other methods of ADR

-Less formal and more convenient than courts

-Cheaper than other forms of dispute resolution.

What are the disadvantages of conciliation?

-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?

- 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?

- 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 might not be binding on one or both of the parties

What are the advantages of arbitration?

- Usually quicker than going to court

- Privacy

- Can pick an arbitrator based on their expertise in industry

- Arbitrators decision is final and binding

- Arbitrators decision can be enforced in court

What are the disadvantages of arbitration?

- Not suitable for every type of dispute

- Can not be enforced in the same way as court decision

- Obtaining an arbitrator and a mutually convenient date can incur a delay

- More expensive than other forms of ADR

- Can be formal and complicated