Civil Court System

The County Court:

• Hears most civil cases- The Crime & Courts Act 2013

• Negligence cases, consumer disputes, housing claims, probate cases

• Claims allocated into a track

• Circuit judge decides liability & awards damages, grant junctions etc

The High Court:

• Chancery Division: Enforcement of mortgages, Insolvency, property, copyright. Heard by single Judge

• Family Division: Crime & Courts Act 2013 created a separate court for disputes regarding family matters (Neon Roberts- medical, divorces, FGM, child abduction etc) Heard by single judge

• Kings Bench Division: Contract, tort cases where amount is £100,000+, but can hear smaller claim cases. Heard by single judge but have the right to a jury in fraud, false imprisonment etc

• Administrative Court (in KBD): supervises conduct of national/local government, inferior courts/tribunals & public bodies of judicial review

Bringing a civil case to court:

• Pre-trial procedure: people try to avoid court action. Legal cuts have been made since 2010- reduces people’s abilities to bring a claim → use of alternative methods to resolve disputes

• Pre-action protocols: parties encouraged to provide information with one another before court date. If a party is unwilling to use an alternative method or provide information, a court case will begin/may have added costs

• Issuing a claim: ‘N1’ form needs to be filled- higher claim=higher fee to pay

• Defending a claim: D may admit & pay full amount/in instalments, D may dispute the claim with reply of ‘N9’ form OR a defence to the court within 14 days, file an Acknowledgement of Service to allow more time for a defence

(If D fails to respond to claim, C can ask court to order D to pay full amount & court costs = ‘a judgment in default’)

The Track System:

Once a claim is defended, it is allocated to most suitable track & then heard in the County Court

• Small Claims Track: Contract & Tort cases up to £10,000, personal injury, landlord/tenant cases up to £1000. Heard by District Judge, 2-3 hours max, limited number of witnesses, encouraged to represent selves.

• Fast Track: £10,000-£25,000. 1 day max, limited number of witnesses, heard within 30 weeks of bringing claim

• Multi-Track: £25,000-£50,000, heard by circuit judge but sent to High Court if complex or £50,000+, strict timetable (set length & number of witnesses)

What is Litigation?

=an appeal

• when a party doesnt agree with the courts decision → asks next court up in hierarchy to change it

• Lodged within 21 days and heard later on

Appeals in the County Court:

• Case heard by District Judge→appeal heard by Circuit Judge in County Court

• Case heard by Circuit Judge→appeal heard by High Court Judge

• Multi-track→Court of Appeal

Appeals in the High Court:

• Mostly go to Court of Appeal

• Parties need ‘leave’ (permission) to appeal (given by Court of Appeal)

• 3-5 judges hear appeal

• ‘Leap-Frog’: rare cases can go straight from High Court to Supreme Court (matters on national importance)

• Further appeals: decisions from Court of Appeal can be appealed again but to the Supreme Court (needs ‘leave’)

Advantages & Disadvantages of using the Civil Courts:

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• Widened access to justice, clear procedure, ensures consistency in the law, parties are guaranteed a resolution

• Heard by qualified/legal experts, consistency (unlikely to act ultra vires), free from political pressure

• Rights to appeal- procedural justice, allowing for mistakes to be corrected, detailed & clear

• Given time limits- minimises delays, faster decisions, parties given more control

-:

• Delays despite the timetables- expenses lost in personal injury cases

• Court is expensive- legal aid reduced since 2010 & not available for personal injury, most represent themselves OR use ‘no win, no fee’ solicitors (only take strong cases & 25% of winnings)

• Uncertainty- no guaranteed win. Loser may have to pay overall costs

• ‘Inequality of Arms’- unfair if against large companies

• Court language is complex- unfair, process is adversarial (aggressive) → doesn’t encourage parties to end on good terms

Tribunals (advantages & disadvantages):

• Operate alongside court system as alternative - Tribunals, Courts & Enforcement Act 2007

• Many types (eg employment) that only deal with their subject matter

• 3 on a panel (judge & 2 wingmen with experience on the matter)

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• Qualified judge (legal experts with detailed knowledge), relieves pressure on courts (saving time&money), more formal than other ADR’s

-:

• Hearings less informal than in court, solicitors discouraged, no legal aid available, can be costly, uncertainty

(Alternative Dispute Resolution) Negotiation:

2 parties reach an agreement without help from a 3rd party

• can be done online, in person etc

• A solicitor can be used to help negotiate a settlement

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• Parties remain in control. Less informal than court & less adversarial. Parties relationship preserved. No public attention

• Low cost- legal representation isn’t necessary. Upholds rule of law and allows justice for everyone. Not legally binding- can go back on a decision

• Straightforward & fast- no delays of court or adversarial language. Parties can also go to court if they feel necessary

-:

• not legally binding & may end up in court anyway=wasted time/money. The amount won will be lower than if they’d gone to court

• Relies on parties being on good terms (eg not always the case in divorce etc)- creates uncertainty of process

• Lengthy process. A big company may pressurise Claimant to settle for lesser amounts of money. Inequality of arms

(Alternative Dispute Resolution) Mediation:

2 parties reach an agreement without help help of 3rd party (mediator)

• 3rd party is a peace keeper, often professionally trained, no vocalisation unless asked

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• Avoids court process, encourages parties to end on good terms, encourages communication, less pressure

• Parties are in control of process, not legally binding (can still go court if unhappy)

• Cheaper/quicker than court. Mediators are cheaper than solicitors. Less formal and adversarial

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• Relies on co-operation of parties- not always realistic (eg divorce/family cases)

• Not legally binding- solution may not be reached/a party might not follow through and would have to go to court anyway- many delays (waste of time/money)

• Relies upon skills of mediator- must be impartial & not force a decision on the weaker party (inequality of arms)

(Alternative Dispute Resolution) Conciliation:

Similar to mediation but 3rd party offers a more active role (involved with discussions & can give impartial legal advice)

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• avoids going to court (cheaper/quicker)- less adversarial

• Parties remain in control- can withdraw at any time. They can continue to work together & ensures a positive relationship is maintained

• Not legally binding- can go back on decisions or go to court if unsolved.

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• court action may be necessary- lengthens process & increases cost

• Relies on conciliator being well trained/skilled in negotiating AND parties being able to communicate maturely with one another

• Amounts paid in settlement usually lower than if they went to court (eg big companies with bigger revenue)- one party may be bigger than the other and push a decision (inequality of arms)

• Not legally binding- parties may follow through on decision/go against agreements made

(Alternative Dispute Resolution) Arbitration:

Neutral 3rd party makes a decision that parties agree to follow (Arbitration Act 1996)- Scott v Avery

• Witnesses can be called

• Can be numerous arbitrators

• Legally binding & enforced (the decision made=‘an award’)

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• legally binding- final decision had to be enforced. More decisive but saves having to go through lengthy court process

• Parties still have control (choose the time, place, arbitrator)- the timetable is more flexible than court

• Qualified arbitrator with experience-likely to make a fairer decision without acting ultra vires. There is procedural justice if a mistake is made

• Quicker/cheaper process than court. reduces stress for parties, less formal & adversarial. Advises parties to remain on good terms

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• The decision is legally binding & final- parties have less control & flexibility over the decision than using other ADR’s. There are appeal rights but these come at a limited range & may add further expense. Complex cases can be subject to delays

• Most expensive form of ADR- parties may not be on equal footing, there is no legal aid. If unsolved- parties may have to go to court anyway- added expensive/delays & wasted time/money

• An unexpected legal point pay arise that the arbitrator may not be qualified to deal with- solicitors may have to get involved (expensive)

Role of judiciary:

• Listens to trials (on first instance), hear witnesses, sit alone → decide liability

• Award damages/grant injunctions

• Follow past precedent (eg Herrington overruling Addie)

• Hear judicial review cases (Miller) & appeal cases

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• Legal expert/receive up to date training

• Have security of tenure

• Are independent- can make politically unpopular decisions (eg Johnson shutting down Parliament)

• Can overrule/change outdated precedent

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• Unelected = undemocratic. They shouldn’t make laws

• Dominated by male, pale, stale judges (2020-76% were 50+)

• Not representative of society (small % of women/mixed race etc)- not diverse. Limited power if they disagree with the jury

• Tenure- it is difficult to remove a superior judge