Civil procedure

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  • Civil Justice system is used to settle disputes between private individuals/organisations. 
  • Theperson bringing the action is called a claimant and the person defending the aftion is known as the defendant.
  • The case has to be proved on the balance of probablities (standard of proof) and burden to prove case is on claimant. 
  • Claimant normally seeking some form of remedy, which could be payment of compensation/injunction. 
  • These disputes include tort, contract disputes, wills ,divorce, bankruptcy and a variety of commercial cases. 
  • Function of civil court is not to punish but to settle disputes and where approproate to compensate aggrieved people. 
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Hierarchy of civil courts

Starting at the bottom:

1) Magistrates

2) County

3) High Courts of Justice

4) Divisional courts of High Court

5) Court of Appeal (Civil division)

6) Supreme court

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Magistrates court

Significant civil caseload:

  • Matrimonal Law e.g. protection against violent spouse, maintenance orders etc.
  • Children- custody, adoption and guardianship.
  • Orders under the Children's Act 1989 e.g. committing children into local authority care, contact orders and residence orders.
  • Debt enforcement e.g. gas, electricity, water rates, income tax and national insurance contributions.
  • Granting and renewing licences e.g. sale of alcohol and betting and gaming premises. 
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Magistrates court

Significant civil caseload:

  • Matrimonal Law e.g. protection against violent spouse, maintenance orders etc.
  • Children- custody, adoption and guardianship.
  • Orders under the Children's Act 1989 e.g. committing children into local authority care, contact orders and residence orders.
  • Debt enforcement e.g. gas, electricity, water rates, income tax and national insurance contributions.
  • Granting and renewing licences e.g. sale of alcohol and betting and gaming premises. 
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County court

Courts of first insatance and were created by County Courts Act 1846.

Originally designed for settlement of smallish claims and debts but their jurisdiction has been increased by various statutes e.g. Courts and Legal Services Act 1990. 

Cheap, locally based alternative to High Court. They're entirely civil and their caseload consists of contracts, tort (personal injury cases), propety, divorce and other family matters, bankruptcy, admiralt, equity and race relations. 

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County court constitutions

England and Wales are divided into circuits, around 170 County Courts. Each circuit has one or more judges who travel circuit hearing cases in County Court. Each County Court also has District Judge who's a solicitor of at least 7 years standing and responsible for courts administration though they may hear small claims.

In 2014, around 170 County Courts throughout England and Wales (signitificant contraction in numbers) e.g. 45 County Courts closed in 212 to save money.

Jurisdiction of CC used to be limited geographically so actions must be brought in where defendant resides/carried theur bussiness or where cayse of action arose. However, Courts and Legal Services Act 1990 removed requirement. The Act increased numbers o claims being heard in County Court by enacting proviso that injury claims up tp £50,000 should be heard in CC rather than HC.

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County court constitutions

In 1980's concerns about effectiveness of civil justice leading review in 1988 (major problems):

  • Delay awaiting trial.
  • Cost of litigation was disproportionate to amount involved.
  • Too many cases were dealt with by higher courts. 30% of HC personal injury cases led to awards below CC levels. Thus important work clogged up in HC.

However, over 10x as many civil actions are commenced in CC as in HC. 1% HC and 10% of CC cases reach trial stage so vast majority settle out of court. 

Delays in both courts meant average waiting times to go to CC was 60-80 weeks and to HC 160-180 weeks.

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County court limitation

In civil case, proceedings must be brought within certain time because:

1) evidence will wane as time passes. 

2) not considered fair to keep defendant in indefinite legal suspence. 

Rule on when to bring action in Limitation Act 1980:

  • actions for personal injuties must be brought within 3 years.
  • contractual disputes must be brought within 6 years.
  • Other actions in tort must be brought within 6 yars.
  • Disputes involving recovery of land must be brought within 12 years. 
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County court small claims

Small claims: In 1973 a special mechanism for dealing with small claims of less than 500 was brought in. Claims would be dealt with by small claims department of county court.

Amounts been raised over years since 2013 stand at £10,000. 

Aim of procedure is to help those who might not seek legal redress because costs of trial could outweight any damages sought.

Usually it's District Judge who acts as arbitrator in Small Claims Court and procedure 'user friendly' with claimants ordinarily presenting their own cases. 

No legal aid avaiable and expert witnesses aren't normally called to give evidence in these cases. 

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County court small claims: are costs justifiable?

Tawil v Cheema (1996) an injury suffered in flight led to award of £750 in damages and aprox £2000 in costs.

Swainston v Fox (1995) a neighbours dispute escalated in court where award £4000 in damages but £25,000. 

Woolls v Powling (1999) neighbour dispute over land worth £200 but cost over £100,000.

Roache v News Group (1992) actor sued for libellouse cost £120,000.

Soringsteen v masquerade Musice (1998) dispute over copyweight vosts £1/2 million. 

If claimant wins case, court order defendant to pay reasonable costs aswell as damages  but not comforting if defendant has no money/leaves country or refuses to pay.

In 95% personal injury cases, defendant insurance company so problem doesn't arise.

Defendant may appeal, but costs mat double. Risk claimant will lose and pay defendants cost as well as own. 

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County court appeals

Appeals from CC go to Court of Appeal however appeals against bankruptcy from C go to Divisional Court of Chancery Division in HC. 

Appeals either on fact/law.

Decision by District Judge is usually final. 

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High Court of Justice

Created by Judicatur Act 1873-75 that amalgamated the common law, equity, ecclesiastical and admiralty courts into one Supreme Court of Judicatur that consists of High Court and Court of Appeal. 

High Court has its headquarters in Lonon at Royal Courts of Justice in Strand but number of district registries in larger cities in England and Wales.

Divided into 3 divisions:

  • Queens Bench (Lord Chief Justice is the head)
  • Chancery Division (Lord Chancellor is President)
  • Family Division 

Assisted by Puisne Judges.

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Queens bench Division

hears most cases e.g. tort, contract, debts and personal injury claims and unlike County Court it's not subject to any limitation as to amount of damages awarded.

Vast majority judge sits alone but 1% cases a civil jury will sit and decide outcome of case- Supreme Court Act 1981 Sc 69 there's a right to trial by jury in cases with fraud, defamation, malicious prosecution and false imprisonment. 

However, to use juries in civil trials it's been criticized:

  • Jurors may not be comptetent to understand evidence/issues involved in fraud trials that involve technical terms and complex law that's beyond grasp of most lawyers. Not suprisingly this lack of understanding by jury often leads to defendants acquittal in criminal case. 
  • Amongst damages awarded defamation by civil juries has been excessive e.g. 1989 jury awarded Sonia Sutcliffe, ex wife of Yorkshire Ripper, £600,000 against publishers of Private Eye and in 1992 Jason Donovan was awarded £200,000 after article suggested he was homosexual. 
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Queens bench Division

Under Sc 8 of CLSA 1990 COA has power to reduce/increase amount of damages.Power first used 1992 in case brought by Conservative MP Teresa Gorman. Jury awarded her £150,000 in damages by COA reduced to £50,000.

Civil jury guided by judge as to level of damages to award defamation cases, guidelines created in Elton John v MGN (1995) where he sued newspaper for defamation and jury awarded damage of £350,000 that COA reduced to £75,000. 

  • Guidelines by COA:
  • Juries should be told what usual awards for personal injuries are so juries know what appropriate compensation award for injury to reputation. Idea is that it's wrong that defamation plaintiff should recieve greater damages than plaintiff who rendered a helpless cripple.
  • Trial judge direct jury as to what's appropriate level of damags by referring to specific figures.
  • Juries should be told award of damages should be minimum sum necessary to pubish defendant and deter others. 

Futher reform came with Defamation Act 1996 that's abolished trial by jury for defamation claims of £10,000 or less. 

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Chancery Division

Lord Chancellor is head but doesn't sit in court. Vice Chancellor is real head of division and 12 Puisne Judges assist him.

Deals with cases heard by old Chancery Court so main caseload is equitable matters like trusts, mortgages, specific performance of contracts, rectification of deeds etc.

Deals with bankruptcy matters and probate and hears appeals from CC on bankruptcy matters, 

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Family Division

16 Puisne Judges assist President of Family Division.

Deals with:

  • Matrimonial matters e.g. defended divorce, custody of children, distribution of property etc. 
  • Applications in respect of children e.g. guardianship and wardship.
  • Hears appeals on family matters from CC and MC. 
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Divisional courts of High Court

Each 3 divisions of HC has Divisional Court where 2-3 judges from that division sit and hear certain appeals and cases.

Divisional with most work is Queens Bench Divisional Court-

  • most important
  • special supervisory powers to check whether public authorities/government departments/ government minsiters/inferior courts/tribunals have exceeded own powers-Ultra Vires. Procedure know as Judicial Review. 

QBD has 2 further functions-

  • hear appeals on point of law from criminal cases tried in MC.
  • hear applications for writ of Habeas Corpus for anyone who claims that they've been unlawfully detained, allows immediate release. 
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Court of Appeal (Civil division)

Master of Rolls heads this court

  • Hears appeals from CC, HC and Tribunals.
  • Hears appeals on mattters of fact (e.g. new evidence) or law. 
  • Hears 1,600 appeals a year and arguably most important court in country.
  • Many important changes to law made here.

Appeals to court take form of rehearing of arguments put forward by counsel. Witnesses not usually called/fresh evidence not uually admitted. Court may uphold,amend/reverse decision of lower court, exceptionally it may order retrial.Appeals in court heard by atleast 3 of following:

  • Lord Chancellor
  • Lord Chief Justice
  • President of Family Division of High Court
  • Master of Rolls(most heard here and Lord Justices Appeal). 
  • Lord Justice of Appeal (Queen on advice of Prime Minister appoints them, must have been barrister for 15 years and practicised as High Court Judge for many years).
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Supreme Court

Created by Constitutional Reform Act 2005 and replaces House of Lords as final uk COA in civil/criminal law.

Hears 80 appeals per year and jurisdiction not confined to English legal system in that it can hear appeals from Scotland and Northern Ireland. 

Hears Appeal, thought such appeals can only be made if either COA/SC gives permission.leave to appeal having certified case involving point of law of national importance.

Appeals can be heard from HC-Administration of Hustice Act 1968 COA allows appeal direct from HC to SC 'leapfrogging' COA- attempt to reduce waiting list of appeals to COA.Procedure intended for cases involving statitory interpretation/where judge's bound by judicial precedent from higher court. 

Used infrequently, mainly for tax and patent cases.

Verdict reached by court by majority (2-3).

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Supreme Court

What is involved in bringing appeal in civil cases?

  • Can't be brought simply because one party lost case.
  • Wont be allowed if dispute over size of previous compensation awards.
  • Appeal has to be agreed by trial judge and appeal court to where it would go.
  • Usually granted where dispute 'on point of law'. means losing party believes important issue of law needs to be taken to more senior court i.e. appeal court. Result of appeal could set precedent. 
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  • Civil courts provide forum for solving civil disputes but problems with cost and delay mean many will try and settle dispute out of court. 
  • Most striking aspect is most civil cases heard not in courts but one of alternatives which growin in 20th century i.e.arbitration and conciliation.
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