Civil courts and other methods of dispute resolution
- Created by: Austen Poole
- Created on: 03-04-17 09:12
View mindmap
- Civil courts and other methods of dispute resolution
- The jurisdiction of the civil courts of first instance
- The county court
- approx. 220 in england and wales
- They have jurisdiction to hear
- Contract tort, recovery of land to any value
- Partnerships, trusts, and inheritance up to £30,000
- Divorce and bankruptcy
- Personal injuries less than £50,000
- Small claims, fast-track and some multi-track cases
- The high court
- Based in london
- There are many in major cities
- There are three divisions
- Queens bench division
- Jurisdiction to hear contract and tort cases
- Some complex multi-track cases
- Has a supervisory role and hear judicial review
- Family division
- Has jurisdiction to hear wardship cases and other family matters
- The chancery division
- Deals with technical issues
- Has jurisdiction to hear:
- Matters of insolvency, mortgages
- Trusts, property disputes
- Copyright and patents
- Intellectual property and probate disputes
- Queens bench division
- The county court
- How a case is taken to court
- Claimant completes the N1 claim form naming the defendant and all the details of the damages
- The court will send the N1 to the defendant and they are given that chance to admit the claim
- If the defendant refuses the claim, the court will send a questionnaire to each party
- When the claimant returns this questionnaire a fee must be paid
- If the defendant refuses the claim, the court will send a questionnaire to each party
- The court will send the N1 to the defendant and they are given that chance to admit the claim
- Claimant completes the N1 claim form naming the defendant and all the details of the damages
- The Track system
- Small claims track
- Hears contract and tort cases worth up to £5000, and personal injury cases up to £1000
- Strict time limit for cross-examination of witnesses
- Heard by a district judge in the county court
- Informal and use of lawyers discouraged
- Advantages
- The cost of taking a claim is low if it is under £1000
- If you lose you do not have to pay the other persons legal costs
- A lawyer is not required and the claiment can represent themselves
- Disadvantages
- Legal funding is not available for small claims
- Businesses tend to use lawyers and this makes and unrepresented person at a distinct disadvantage
- The district judge is not always as helpful as expected when dealing with unrepresented claimants
- Fast track
- Hears claims from £5,000 to £25000
- Strict timetable set - case should be heard within 30 weeks
- Trial to last one day and limited number of witnesses
- Heard by a district judge in the county court
- Multi track
- Hears claims over £25,000 or cases involving complex points
- Heard by a circuit judge in the county court but can be sent to the high court
- Judge will 'case manage' setting a strict timetable for matters such as disclosure of documents
- Parties may be encouraged to try one of the other methods of dispute resolution
- Small claims track
- The Appellate Courts
- The divisional courts of the high court
- The queens bench division
- To preside over applications for judicial review
- To hear appeals by way of case stated from criminal matters decided in the magistrates court
- The queens bench division
- The court of appeal (civil division)
- This is headed by the master of the Rolls
- It hears appeals from:
- Divisions of the High Court
- Some county court multi track cases
- Certain tribunals
- In order to bring an appeal to this court 'leave' is needed
- The supreme court
- This hears cases of public importance
- It hears cases from:
- Courts of appeal
- Divisional courts
- HIgh court under the 'leapfrog' provisions
- The divisional courts of the high court
- Woolf Reforms
- Introduced in April 1999
- Overhauled the Civil Procedure Rules
- Effects
- There is now more cooperation between parties
- Rules on disclosure and time are strictly enforced
- Early settlement is actively encouraged by the use of pre-action protocols
- Delays between issuing a claim and hearing have reduced
- Costs have increased overall in fast-track and multi-track cases
- Court remains very formal and this can be intimidating
- The courts are still under-resourced, with IT systems regarded as primative
- Alternative Dispute Resolution (ADR)
- This is a way or resolving a dispute without going to court
- Court hearings are not always the best way of resolving a dispute
- They are expensive and take a long time
- Advantages
- Costs - this is usually cheaper to solve disputes as there are no court costs
- Speed - ADR will allow matters to be resolved more quickly than going through the court system
- Control - the parties have more control over ADR rather than handing control to the courts
- Flexibility - the time and place can be arranged to suit both parties in a more relaxed and informal hearing
- Expertise - the parties can choose thier own mediator/ conciliator/ arbitrator
- Privacy - the matter will be dealt with in private and therefore no publicity
- Disadvantages
- Unequal bargaining power - in some matters one party is able to have all the power
- e.g. Divorce, Employment cases
- In these cases it would be better to go to a court or a tribunal
- e.g. Divorce, Employment cases
- Lack of legal expertise - during the case a legal point may come up and the law expert may not have enough knowledge to solve it
- Court action may still be required -the matter may still remain unresolved after ADR
- Lack of enforceability - if one party fails to fulfill the terms of the agreement, the matter may still have to go to court
- Unequal bargaining power - in some matters one party is able to have all the power
- Types of ADR
- Mediation
- This is a voluntary process where a third party will assist the parties in coming to a conclusion
- The outcome is not binding
- e.g.'s of mediation services
- The centre for effective dispute resolution
- Family mediators association
- This is a voluntary process where a third party will assist the parties in coming to a conclusion
- Conciliation
- This is voluntary
- The conciliator will provide grounds for compromise and possible ways of resolving the dispute
- The conciliator has no power to impose their own solution to the matter
- e.g.'s The advisory, conciliation and arbitration service
- Pros and cons
- Mediation
- This is a voluntary process where a third party will assist the parties in coming to a conclusion
- The outcome is not binding
- e.g.'s of mediation services
- The centre for effective dispute resolution
- Family mediators association
- This is a voluntary process where a third party will assist the parties in coming to a conclusion
- Advantages
- Voluntary process encourages cooperation
- Both can be cheap and quick
- Less formal than court
- Maintains working relationships
- Parties retain a sense of control
- Highly sucessful
- Private and no media exposure
- Disadvantages
- No guarantee that the problem will be resolved
- Will not work unless both parties are willing to cooperate
- Settlements are often lower than those settled in court
- Agreements cannot be enforced
- Could go on for a long time without settlement
- Unless the mediator has the needed qualities, mediation can turn into bullying
- Mediation
- Arbitration
- This the formal method of ADR
- Parties agree to:
- Allow their dispute to be left to the judgement of an arbitrator or a panel of them
- The time and place of the hearing
- The procedure for the hearings
- Be legally bound by the decisison
- e.g.'s The advisory, conciliation and arbitration service
- Pros and cons
- Advantages
- The parties can choose their arbitrator
- Use of an expert to decide avoids using expert witnesses
- Flexibillity - the time and place of the hearing can be decided by the parties and is held in private
- Confidentiality
- Likely to be dealt with quicker and cheaper
- Award is final and can be enforced by the courts
- Avoidance of bad feeling between parties
- Disadvantages
- Unexpected legal points may come up that the arbitrator may not be able to fully take into account
- Arbitration may become highly complex when dealing with technical points
- Commercial arbitration can take as long as the courts to complete
- Professional arbitrators may be very expensive
- The lack of availability of funding may disadvantage some people
- Rights of appeal are more limited than the courts
- Advantages
- Mediation
- The jurisdiction of the civil courts of first instance
Comments
No comments have yet been made