Civil Courts and Alternative Dispute Resolution

Civil Claims

Lawsuit to remedy a private wrong

Courts of Civil Jurisdiction

County and High court

County Court areas of Jurisdiction

All contract and tort claims, All cases for recovery of land, Disputes over equitable matters

High Court

King's Bench Division, Chancery Division and Family Division

What is the largest division of the High Court?

Queen's Bench Division

What types of cases does the Queen's Bench Division hear?

Tort and contract cases worth over £100,000 or on a point of law.

Who tries cases in the Queen's Bench Division?

A single judge.

In which cases is there a right to jury trial in the Queen's Bench Division?

Fraud, defamation, false imprisonment, and malicious prosecution cases.

What does the Chancery Division of the High Court deal with?

Financial issues such as insolvency, mortgages, copyright, and probate.

How are cases heard in the Chancery Division of the High Court?

All cases are heard by a single judge.

What does the Family Division of the High Court deal with?

Divorce, children/financial matters, adoption and care cases.

From where does the Family Division of the High Court hear appeals?

Family cases from Magistrates or County courts.

Pre-Action Protocols

Guidelines to follow before initiating legal proceedings.

Claim Form N1

Document to initiate a court claim.

What options does a defendant have upon receiving a claim?

The defendant can either admit the claim and pay the full amount or dispute the claim and send an acknowledgment of service within 14 days.

What happens if a defendant does not respond to a claim?

If the defendant does neither admit nor dispute the claim, the claimant can ask the court to order the defendant to pay the money and costs claimed.

Form N9

Standard form for acknowledging service of claim.

Lord Woolf's Report

Introducing a track system, and encouraging other forms of dispute resolution, including ADR

Civil Procedure (Amendment No.2)

Introduced a fourth track to the civil court system

Small claims track

under £10,000, county court, district judge

Fast track claims

Claims between £10,000 and £25,000, county court, circuit judge

Intermediate Track

For claims between £25,000 and £100,000, county court, circuit judge

Multi-track claims

Complex cases requiring detailed management, over £100,000, High court, High court judge

Lord Woolf's criticisms

Unequal, expensive, slow, uncertain and complicated

What is one positive effect of the Woolf reforms on legal proceedings?

More cooperation between the parties' lawyers.

How have the Woolf reforms affected the timeline of legal cases?

Delays between issuing a claim and hearing have improved.

What has been the impact of the Woolf reforms on case settlements?

The number of cases settled has increased.

What is a major issue with the implementation of the Woolf reforms?

Alternative dispute resolution is not used enough.

What ongoing problem has persisted despite the Woolf reforms?

Costs of cases have continued to increase.

What limitation exists in the IT systems related to the Woolf reforms?

The IT systems are limited.

Post-Woolf reforms

-Emphasis on proportionate costs in cases

-Increase value small claims/fast track cases can deal with

Lord Briggs 2016

Private mediation service in the county court

Setting up of an online court

Four Track System

What is the focus of Lord Briggs' 2016 report?

The establishment of a private mediation service in the county court.

What significant development in court processes was proposed in Lord Briggs' report?

The setting up of an online court.

What system does Lord Briggs advocate for in the court structure?

A Four Track System.

What happens to appeals initially heard by a district judge in the county court?

They will be heard in the same county court by a circuit judge.

What happens to appeals initially heard by a circuit judge in the county court?

The appeal will go to the high court.

Under what conditions can a second appeal be made?

A second appeal can only be made if it raises an important point of principle or practice, or there is a compelling reason for the court to consider it.

What is the process for appealing from a high court to a court of appeal?

Appeals from a high court to the court of appeal in the civil division are standard, and a leapfrog appeal directly to the supreme court is possible in cases of national importance with permission from the court.

Leap frog appeal

Direct appeal from High Court to Supreme Court.

What is required for further appeals from a decision of the court of appeal?

Further appeals from a decision of the court of appeal to the supreme court require permission from the court.

What is an advantage of using the courts regarding fairness?

The process is fair.

Who conducts the trial in court?

A legal expert.

Who makes the decision in a court trial?

A judge.

How is enforcement handled in the courts?

Enforcement is easy through courts.

What is available if a party wants to challenge a court decision?

There is an appeal process with specific routes.

What financial assistance may be available in court cases?

It may be possible to get legal aid.

Disadvantages of using courts

• cost

• delay

• complicated process

• uncertainty

What is King's Counsel (KC)?

A senior barrister appointed on the recommendation of the Lord Chancellor.

Why is King's Counsel (KC) often referred to as 'silk'?

Because of the robes that they wear.

What is negotiation?

A process in which parties attempt to settle their dispute informally.

Do parties in a negotiation always have attorneys representing them?

No, they can negotiate with or without attorneys.

What is mediation?

A process slightly more formal than negotiation where a neutral third-party mediator attempts to resolve issues between parties without giving their opinion.

What is the role of a mediator?

To act as a communicating agent between the parties.

What does a mediator suggest?

Ways in which the parties can resolve their dispute.

What is a mini-trial?

A private proceeding in which each party to a dispute argues its position before the other side.

What role does a neutral third party play in a mini-trial?

A neutral third party may be present and act as an adviser if the parties fail to reach an agreement.

What is mediation often used for?

Mediation is often used in family disputes.

What must parties show before attempting court proceedings?

Parties must show they have attempted the mediation process.

How can individuals access mediation services?

Mediation services are accessible through charities like Relate or the Centre for Effective Civil Dispute Resolution (CEDR).

Tribunals

forums used instead of a court for deciding certain types of disputes. They are less formal than courts

Role of tribunals

To provide individuals with a low-cost, efficient and speedy method of dispute resolution process

Structure of tribunals

7 divisions dealing with specific areas of law and 4 divisions for appeals

What is negotiation in the context of alternative dispute resolution?

A method used to resolve disputes informally without legal intervention.

What are some common situations where negotiation might be used?

Noise caused by neighbors, returning faulty goods, or receiving poor service from a tradesman.

What are the advantages of negotiation?

Cost-effective, informal, helps preserve relationships, offers flexibility and control, and is quick.

What are the disadvantages of negotiation?

No guaranteed resolution, potential power imbalance, possibility of delays, and it is not legally binding.

BATNA

An acronym for 'Best Alternative to a Negotiated Agreement,' representing the best outcome a party can achieve if negotiations fail.

ZOPA

An acronym for 'Zone of Possible Agreement,' the range in which two parties can find common ground during negotiations.

Win-Win Solution

An outcome in negotiation where all parties feel they have gained something of value, resulting in mutual satisfaction.

Negotiation Tactics

Strategies employed by negotiators to influence the outcome of discussions and achieve their objectives.

Facilitation

The process of guiding a group discussion to ensure that all voices are heard and that the group stays focused on its objectives.

Confidentiality

The principle that information shared during negotiation or ADR processes should not be disclosed to outside parties.

Good Faith Negotiation

An ethical approach where parties engage honestly and sincerely in the negotiation process.

In what types of disputes is mediation commonly used? (except children)

Mediation is often used in family disputes over children and financial issues.

What is a mini trial in the context of mediation?

A more formal method of mediation that involves presenting the case to a neutral party for a non-binding decision.

What are some advantages of mediation?

Not requiring legal representation, being cost-effective, preserving relationships, and promoting confidentiality.

What is conciliation?

A process similar to mediation where a conciliator plays a more active role.

What role does a conciliator play in conciliation?

The conciliator suggests grounds for compromise or settlement.

ACAS

Conciliation service for employment disputes in the UK.

What is a financial advantage of conciliation compared to taking a court case?

It is cheaper than taking a court case.

What control do parties have in the conciliation process?

The parties have some control in choosing the conciliator and the process.

How can conciliation benefit future interactions between parties?

It can help preserve future business relationships.

What is a disadvantage of conciliation regarding the conciliator's role?

The conciliator may force a resolution on one or both of the parties.

What is a potential outcome of the conciliation process?

The process may not bring about a resolution.

What is a limitation of the results of conciliation?

The result may not be binding on one or both parties.

Arbitration

Settling a dispute by agreeing to accept the decision of an impartial outsider

Scott v Avery Clause

Contract between two parties, stating that they will submit any disputes to arbitration before taking it to court

Scott v Avery clause is common in?

Building contracts or package holiday contracts

Paper arbitration

All documents are on paper and there is no actual hearing in court

Formal court-like hearing

Date and time decided by parties. Held in private

What is an advantage of arbitration compared to litigation?

More efficient than litigation

How does the cost of arbitration compare to litigation?

Less expensive than litigation

What control do parties have in the arbitration process?

Parties choose the arbitrator and determine how formal the process will be