CIVIL COURTS AND ADR - G151 THE ENGLISH LEGAL SYSTEM

• From a decision in the Court of Appeal there is further appeal to the Supreme Court on a point of law with leave either from the Court of Appeal or the Supreme Court 

• A point of European law may be referred to the Court of Justice of the European Union for clarification for any court under Article 267 of the Treaty for the Functioning of the European Union TFEU

A description of mediation, conciliation and arbitration is required with at least one illustration (example) of each. 

• Mediation – neutral person helps parties reach a compromise solution acting as a facilitator. Mediator does not offer an opinion unless asked. They take a passive role Often used in relationship situations eg Relate 

• Formalised settlement conference is another method of approaching mediation – mini trial but no binding results. Illustrations include Centre for Dispute Resolution dealing with companies and more local mediation services to deal with disputes between neighbours 

• Conciliation – conciliator goes beyond mediation in that they have the power to suggest grounds for compromise or a settlement. Often used in industrial disputes using ACAS 

• Mediation and conciliation both allow the parties to have control over the resolution process as they can withdraw at any time and a resolution to the dispute cannot be imposed on them as they must agree to it

• Allocation of cases to different tracks dependent on the value of the claim and complexity of the case:
  • Allocation questionnaire
  • Small claims for cases up to £10,000 (£1,000 for personal injury cases)
  • County Court Fast Track for cases from £10,000 to £25,000
  • Multi-Track cases usually in the County Court for £25,000 - £50,000 but can go to the High Court especially in cases involving complex points
  • High Court Multi track usually for cases valued at over £50,000 but these can be heard in the County Court
  • Explain the time limits for each track
  • Limit on number of witnesses

County Court and the High Court are the main civil trial courts.

County Court:

• contract, tort, recovery of land to any value
• Partnerships, trusts and inheritance up to £30,000
• Divorce and Bankruptcy
• Small Claims- actions involving up to £10,000.

High Court:

• Queen's Bench Division - contract and tort over £50,000 and some from £25,000 (Multi- Track) E.g - Defamation of Character and/or Judicial Review, Includes Commercial Court, and Admirality Court
• Chancery Division - insolvency, mortgages, trusts, property disputes, copyright and patents, intellectual property and probate disputes.
• Family Division - Children Act 1989 cases, and other family matters.

• Small claims appeals – the appeal is heard by the next judge up in the hierarchy from the judge who initially heard the case 
• Fast track cases – dealt with by a District Judge the appeal will be heard by a Circuit Judge 
• Fast track cases dealt with by a Circuit Judge the appeal is heard by a High Court Judge 
• Second appeals to the Court of Appeal for fast track cases only in exceptional cases where the Court of Appeal considers there is an important point of principle or practice or there is some other compelling reason 
• Final decisions in multi-track cases – heard in the County Court the appeal is to the Court of Appeal.

• Arbitration – both parties voluntarily agree to let their dispute be left to the judgment of an arbitrator or a panel of arbitrators who are neutral

• Agreements to arbitrate are governed by the Arbitration Act 1996 and are usually in writing. Agreement to go to arbitration can be made before a dispute arises [usually by a Scott v Avery clause in a contract]. Agreement will either name an arbitrator or provide a method for choosing one. A court may also appoint an arbitrator. The parties agree the procedure for hearings and this ranges from a ‘paper’ arbitration to a formal court like hearing

• Arbitration decisions are binding on the parties and can be enforced by the courts if necessary. An award by an arbitrator can be challenged in the courts for serious irregularity in the proceedings or on a point of law. Illustrations of situations where arbitration is used include building contracts, holiday contracts and as a result of various other business contracts 

• Negotiation – parties reach agreement themselves with no third party. They may act through solicitors.

Advantages of the track system:

• Case management has improved matters including the allocation of tracks
• The rate of settlement prior to the case being heard does appear to have improved reaching almost 80% in some areas
• In fast track cases the time of the trial is limited with limitations on expert witnesses does this lead to justice?

Disadvantages of the track system:

• Costs have increased overall due to the front-loading of costs for all the tracks
• There are mixed views about whether delays have been reduced. Fast track cases can still take 48 weeks to get to trial which can hardly be called “fast”, but is faster than before the reforms, and even small claims can take 29 weeks to be heard. Multi track cases can still sometimes take years to get to court
• There has been little increase in the use of ADR and judges rarely stay cases for mediation 
• The courts are still under resourced with IT systems regarded as primitive in comparison with private practice.

• From the High Court the appeal usually goes to the Court of Appeal (Civil Division) 
• Possible leapfrog appeal directly to the Supreme Court if “statutory interpretation or precedent” is involved or the Court of Appeal is bound by one of its own previous decisions.

•  The parties can choose their arbitrator and appoint a technical expert if appropriate as the use of an expert to decide saves the necessity for expert witnesses

• The time and place of the hearing can be decided by the parties to suit their needs and working commitments unlike court where such control by the parties is not possible 

• Hearings are held in private saving the publicity of court and bad feeling is more likely to be avoided between the parties

• Cases are likely to be dealt with more quickly than the courts 

• Tends to be cheaper than court 

• Award is final and can be enforced by the courts

•  An unexpected legal point may arise in the case which is not suitable for decision by non-lawyer arbitrators

• Professional arbitrators may be very expensive and unexpected legal points may crop up which the arbitrator may not be able to fully take into account

• The costs may also be as high as going to court particularly if the parties opt for a formal hearing with witnesses and legal representation

• The use of arbitration has grown over the years and has resulted in delays for hearings particularly in commercial and international matters. The track systems has case management and strict timetables

• There is no legal aid available for arbitration which may result in parties being not on equal footing in terms of legal assistance. A business is more likely to be able to afford legal representation. However, there is very limited funding now available for civil matters in court

• The rights of appeal in arbitration are very limited. There are more opportunities to appeal following a decision of the court.

• Costs – ADR is usually cheaper to solve disputes as there are no court costs incurred and potential reduction or removal of costs for legal advice 
• Speed – ADR will allow matters to be resolved more quickly than going through a court hearing 
• 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 resulting in a more informal and relaxed hearing. The strict letter of the law does not need to be followed
• Expertise – the parties can choose their own mediator/conciliator/arbitrator – eg a technical expert
• Privacy – the matter will be dealt with in private and therefore no publicity
• ADR is less adversarial than court hearings and encourages co-operation. This allows relationships, eg business relationships to continue (avoiding bad feelings). They are often destroyed by the adversarial nature of a court hearing
• Under the Woolf reforms courts are under a duty to encourage the use of ADR and may even stay proceedings.