civil litigation process

general info

means by which the state enables individuals to settle private civil disputes

criminal cases brought by state, against an individual

civil vase commenced by an individual or organisation

civil legal systems pre-Lord Woolf 1996 reforms

courts had separate procedural rules

terminology was confusing

struggled to deal with volume and was no alternative to court proceedings

no changes implemented

lord woolf’s reforms 1996 report

investigate the civil justice system and produce a report to recommend reforms to the system

highlighted issues with civil litigation process

what are civil procedure rules

governs civil proceedings

divided in relation to a particular aspect of procedure and more detailed guidance in accompanying practices directions

pre-action protocols

general overview of way claims are handled

allocated to one of three tracks

setting timetables and ensuring rules and procedures are complied with

costs fixed or courts have wide powers to control costs

encouragement to use ADR and to issue proceedings as last resort

purposes

ensure resources allocated to value and complexity

manage costs of cases and save expense

deal with case in ways that are proportionate

civil court structure

county and high court

allocated to one of 3 tracks

depends on value and complexity of the case

how are civil proceedings commenced

claim form delivered to court to be issued

start when claim form issued

aim of CPR is to enable parties to prepare their case

settlement is encouraged before trial if possible

what about settling the claim before it goes to court - CPR 36

formal process to make an offer to settle

make an offer to settle under part 36

if accepted, pay in 14 days

county court

less than £50,000

circuit, recorders and district judges

small claims track = dealt with by way of small claims arbitration

fast track = deal with low value cases

intermediate & fast track = rest of the workload from county and high courts

small claims track

under £10,000, personal injury under £5,000

rare for lawyers to be involved in cases due to informal nature of proceedings

informal and strict rules of evidence don’t apply

heard by district judges

fast track

simpler, lower value - £10,000 to £25,000

heard in one day and no more than two expert witnesses

heard by district judges

intermediate track

£25,000 to £100,000

no longer than 3 days

2 experts per party

no additional factors which would make it appropriate for intermediate track

fixed costs

circuit or high court judges

multi track

more complicated cases

over £100,000

high court or district judge

high court

queen’s bench division, chancery division, family division

QBD - contract and tort, divisional has appellate jurisdiction and can determine appeals by way of case stated

personal injury cases must not be started in the high court unless the value of the claim is £50,000 or more

alternatives to litigation

concerns the parties resolving legal disputes without having to go to court

why - low costs, less formal, more flexibility, less adversarial, confidential

adjudicative = 3rd party independent of parties and reach conclusion and remedy

non-adjudicative = 3rd party relies on facilitating an agreement, determinative

in what circumstances is it reasonable to refuse ADR

nature of dispute, merits of case, extent to which other settlement methods have been attempted, whether the costs would be disproportionately high, whether any delay insetting up and attending ADR would be prejudicial, whether ADR had a reasonable prospect of success

arbitration

most common

impartial tribunal without unnecessary delay or expense

parties should be free to agree how their disputes are resolved

courts shouldn’t intervene with these decision unless prescribed

mediation

facilitated negotiation

doesn’t always need them in the same room

back and forth until agreement is reached

not everyone continues with whole process so could be a waste of time

conciliation

mediator might propose a solution independent of the parties

some see their role as being neutral and convey positions rather than put forward their own

advantages of ADR

disputes are resolved quickly

most cost effective than going to court

more informal - less pressure and helps maintain relationships

confidential - important for sensitive cases or where reputation is on the line

disadvantages of ADR

requires consent - not all parties will want to compromise, especially if they feel they have been wronged

might end up in court anyway

not bound by precedent - could lead to uncertainty with decision

minor disputes

not appropriate for all circumstances