civil courts

what is the role of the civil court?

approx 200
try nearly all civil cases
types of cases: all contract/tort claims, all cases for recovery of land, disputes over equitable matters such as trusts up to a value of £350,000
heard by circuit or district judge
rare occasions - judge sits with jury of 8 on defamation cases

what is the role of the high court?

power to hear any civil case and has 3 divisions:
KBD - large/complex cases claims for compensation
chancery - trusts, contested wills, winding up companies
family - complex defended divorce cases, adoption, domestic violence

how do appeals work in the high court?

each division has an appellate court (KBD, chancery, family)
first instance case in a high court is heard by 1 judge
appeal in a divisional court is heard by 3 judges
divisional courts hear appeals from the county court

how do appeals work in the COA (civil division)?

deals with appeals from the HC
some appeals can be leapfrogged directly to the SC
hears appeals from the tribunal service
staffed by lord justices of appeal
headed by master of the rolls
busy with a big backlog of cases

what is the role of the SC?

final court of appeal for all UK civil cases
12 judges who sit as uneven panel of 3, 5, 7 or 9
hears appeals on arguable points of law of general public importance
concentrates on cases of greatest public and constitutional importance
hears on average 50 cases per year
hears appeals from COA and from HC under ‘leapfrog’ procedure

what was the civil procedure before the 1999 reforms?

before woolf reforms, 2 separate sets of civil procedure depending on where case commenced
cases in HC used ‘white book’ and began with a writ
cases in county court used ‘green book’ and started with summons - confusing system
lord woolf tasked with reforming civil justice system and wrote ‘access to justice: final report’ in 1996 (woolf report)

which key flaws did woolf identify in the civil justice system?

expensive
delays
complex
adversarial
unjust
emphasis on oral evidence

what were the woolf reforms?

simplified procedure
pre-action protocols
case management
ADR
3 tracks
sanctions

what criticisms does zander make of the civil justice system?

costs have gone up
delay
case management
complexity
encouragement of ADR

what 5 main weakness does lord briggs outline that affect the civil courts?

lack of adequate access to justice
inefficiencies from excessive paperwork/outdated IT facilities
unacceptable delays in the COA
underinvestment in provision for civil justice outside london
widespread weaknesses in the process for enforcement of judgements/orders

what reforms did lord briggs propose?

main one - setting up an online court
flexibly operating hours: (8:30am - 8:30pm) in some civil courts to provide greater flexibility/accessibility

how do you start a civil case?

C needs a claim form called ‘N1’
once form is filled C should photocopy it so they have a copy, the court has a copy and each D had a copy
form is taken to the court office and a fee is paid

how do you defend a claim in a civil case?

when D receives claim form there are routes which can be taken:
admit the claim and pay full amount
may dispute the claim. if D wishes to defend the claim, they must send an acknowledgment of service (form N9) or defence to the court within 14 days of receiving the claim
if D does neither, C can ask court to make an order that D pays the money and costs claimed - order in default

what are the steps to trial in defended cases?

allocation questionnaire - parties complete a questionnaire which allows the judge to allocate a case to the most appropriate track
case monitoring - happens once the case starts and is the system by which the court monitors progress of a case to help achieve a quick conclusion. done by court staff using an electronic diary to record filing of documents and other deadlines
track allocation - each case is allocated to one of the 3 ‘tracks’ depending on the value of the claim

what are the 3 tracks in civil cases?

small claims
fast track
multi track
decision on which track should be used is made by district judge in county court or master in the HC

what is the small claims track?

used for disputes under £10,000 except PI and housing where the limit is usually £1,000
county court with district judge
open court
lawyers can be used but costs will not be awarded
judges - inquisitorial - take active part by asking questions etc.
common types of cases: compensation for faulty services/goods, disputes between landlords and tenants

what is the fast track?

used for straightforward disputes of £10,000 to £25,000
strict timetable for pre-trial matters to prevent time wasting and unnecessary costs
heard in county court by a district judge
open court
trials should take a max of 1 day
expert witnesses are restricted to 1 joint expert

what is the multi track?

deals with very complicated cases over £25,000
case tried by a circuit judge who will be expected to manage the case once allocated
judge follows civil procedure rules and can require the parties to try ADR and can ‘stay’ proceedings for up to a month to achieve a settlement and avoid wasting costs
county/high court

what are the types of cases that juries can hear in civil cases?

very limited use in civil trials: civil fraud, malicious prosecution, false imprisonment
ward v james: lord denning said PI cases were unsuitable for jury trials
in 1998 less than 1% of civil trials in england and wales were jury trials and these were principally defamation cases

what is the composition of the jury in civil cases?

HC - 12 jurors, minimum 9
county court - 8 jurors, minimum 7
coroner’s court - 11 jurors, minimum 7 - decide COD in prison, police custody industrial accident

how does awarding of damages by a jury work in civil cases?

dual role - decide liability on ‘the balance of probabilities’ and if they conclude that C has won, they will then decide what damages are awarded and on what scale

what is the advantage of civil juries?

magna carta recognised fundamental right to be tried by your peers

what are the disadvantages of civil juries?

disparity between jury awards of damages and awards of damages by judges - better for the judiciary to be responsible for valuing claims

what are tribunals?

forums used instead of a court for deciding certain types of disputes less formal than courts
handle over 1 million cases per year

what do tribunals do?

operate alongside court system and have become part of legal system
created after WWII
created to give people a method of enforcing their entitlement to certain social rights
peach grey v sommers confirmed tribunals are inferior to ordinary courts

what are the types of tribunals?

administrative
domestic
employment

what does the administrative tribunal do?

deal with disputes between individuals and the state over rights contained in social welfare legislation, such as social security, immigration and land

what does the domestic tribunal do?

internal tribunals used for disputes within private bodies, such as the law society and general medical council

what does the employment tribunal do?

most common use of tribunals and deal with disputes between employees and employers over employment legislation

what is an example case that was tried in a tribunal?

uber v aslam and farra: employment tribunal rules against uber finding that drivers were employees not independent contractors
uber appealed decision to employment appeals tribunal but earlier decision was upheld
uber went to COA who agreed that drivers were employees
SC dismissed uber’s appeal

which act reformed the tribunal system?

tribunal courts and enforcement act 2007

what did the tribunal courts and enforcement act 2007 do?

created a unified structure with a first-tier tribunal to hear cases at first instance and an upper tribunal to hear appeals

which tribunals come under the upper tribunal?

tax and chancery chamber
lands chamber

which tribunals come under the first-tier tribunal?

taxation chamber
asylum and immigration chamber

what is the court hierarchy with tribunals?

SC
COA
second-tier tribunals
first-tier tribunals

what is the composition of tribunals?

cases in first-tier tribunals are heard by a tribunal judge
for some cases, 2 specialist non-legal members sit with the judge to make the decision. these people have expertise in the particular field of the tribunal

what is the procedure in tribunals?

both sides must be given opportunity to put their case
in some (especially employment and asylum tribunals) will be done in a formal way with witnesses giving evidence on oath/being cross-examined
funding for representation only available in few so most won’t have a lawyer and will present their own case
tribunal decision is binding

what are the advantages of tribunals?

cost: cheaper as parties are encouraged not to use representation
expertise: at least 1 member of tribunal will be an expert in that field so saves time explaining technicalities to a judge
speed: duty on tribunal judges to take case management duties so they can impose stricter timetables to hear a case in one day
informality: less formal than court so parties benefit from a private hearing and can preserve relationships

what are the disadvantages of tribunals?

delay: average waiting time has risen to 204 days in 2016-17 from 197 in 2015-16 - reflects the pressure tribunals have been under since fees were abolished in 2017
intimidated parties: parties feel intimidated at a day in ‘court’ without representation
lack of precedent: leads to unpredictability because tribunals don’t follow strict system of precedent
lack of funding: funding not always available (although sometimes covered by trade union)

what is ADR?

alternative dispute resolution

what are the reasons for using ADR??

cheaper than court
quicker than court
less stressful than court
not adversarial - preserves relationships
can get an apology or change in practice
flexible
longer lasting

which act encourages ADR?

civil procedure rules 1998 where it is part of a judge’s role in active case management to encourage ADR where appropriate

what are the types of ADR?

negotiation
mediation
conciliation
arbitration

what is negotiation?

resolving a dispute by negotiating directly with the other person
private
cheapest method of solving disputes
lawyers can negotiate on behalf of their clients and high number of cases settled out of court

what are the advantages of negotiation?

completely private
quick resolution - maintaining relationships
relatively informal

what are the disadvantages of negotiation?

involving solicitors can make it costly
often offers are exchanged and aren’t agreed until day of court wasting time/money
seen as ‘halfway house’ and think they aren’t receiving as much as if they had gone to court

what is mediation?

neutral mediator helps parties reach compromise solution - third party acts as ‘referee’
particularly popular in family cases - family law act 1996
‘modern’ methods are online or mediation centres
mediator consults with each party, explores common ground between them and ‘carries’ offers to and fro
cannot suggest ways to compromise - parties must be encourages to come to their own decisions

what are the advantages of mediation?

private/confidential
parties enter voluntarily
quick/cost-effective/accessible
good chance parties can maintain a relationship
CEDR claims over 80% of cases are settled at mediation

what are the disadvantages of mediation?

mediator’s role is only facilitative
parties must want to reach a compromise
not normally legally binding so dispute may go to court if it results in greater costs
amounts paid in mediated settlements often lower than amounts in other settlements
increasingly seen as a compulsory step where parties are ‘forced’ into mediation where there is a half-hearted commitment - decreasing chance of success

what is conciliation?

similar to mediation
neutral 3rd party helps to resolve the dispute but a conciliator will play a more active role than a mediator
suggest grounds for compromise and the possible basis for a settlement
industrial disputes ACAS can give an impartial opinion on the legal position

what are the advantages of conciliation?

cheaper than litigation
private/confidential
3rd party conciliator plays a more active role than in mediation/suggests areas of compromise
SCSS adopts a prevention rather than cure approach to dispute resolution
identifies and clarifies the main issues in the dispute

what are the disadvantages of conciliation?

heavily relies on the skills of the conciliator
parties have to want to reach a compromise
not normally legally binding
dispute may end up going to court anyway if conciliation fails resulting in greater costs

what is arbitration?

used to cover 2 different processes
1st is where courts use more informal procedure to hear cases - way proceedings in commercial court of KBD are described
2nd is where parties agree to submit their claims to private arbitration to judgement of some person other than a judge
arbitration act 1996 states object of arbitration is to obtain a fair resolution by an impartial tribunal without unnecessary time/expense
such an agreement will be in writing

what is a scott v avery clause in relation to arbitration?

commercial contracts sometimes include these - promise to arbitrate in event of a dispute

what are the advantages of arbitration?

formal binding decision known as an award which can be enforced by courts
can be enforced by courts
arbitrator is expert in field
rarely any publicity
hearing procedure is left to discretion of parties where they can choose the venue, date, number of witnesses etc.

what are the disadvantages of arbitration?

parties may not be on an equal footing with regards to legal representation
legal aid is not available so one party may have an advantage
unexpected legal point may arise
fees can be expensive for professional arbitrators and formal hearings
appeals are restricted in process

what was recommended in the new report on ADR by the civil justice council?

called for courts to impose tougher sanctions on litigants who refuse to seriously consider an alternative to court
public awareness of ADR needs to be raised
the disciplinary codes of all parts of the profession should emphasise a professional duty to ensure that clients understand all the alternatives to litigation that are available
small claims mediators and the small claims mediation scheme need to be fully resourced