Civil courts and other methods of dispute resolution

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  • 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
    • 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
    • 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
    • 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 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
    • 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
        • 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
      • 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
        • 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
            • 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
        • 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

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