Law- Civil courts & Dispute Resolution

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  • Created on: 08-05-13 10:01

Civil Courts

Magistrates Court 

  • first instance
  • family matters 
  • unpaid council tax, charges for water, gas and electricity
  • Heard by a District Judge

County Court

  • First Instance 
  • Contract, Tort eg. negligence, bankruptcy, property
  • Heard by a Circuit Judge

High Court

  • First instance- 3 divisions
  • OBD- Contract, Tort
  • Family- family, divorce, chidren, financial claims, adoption and care
  • Chancery- partnerships, company laws, wills, trusts
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Civil Courts

  • Heard by a High Court Judge
  • Appeals- 3 divisions
  • OBD- criminal appeals- judicial review
  • Family- appeals from Magistrates' and county courts
  • Chancery- appeals, bankruptcy- from county court

The Court of Appeal Civil Division

  • Appellate Jurisdiction- civil matters from County Court, High Court and Employment Tribunals
  • 35 Lord Justices of Appeal, led by the masters of the Rolls 
  • 3-5 Judges hear an appeal, which requires leave to appeal from trial judge or Appeal Court to be heard.

The Supreme Court

  • Appellate Jurisdiction- final court of appeal for England and Wales
  • Hear appeals on civil matters from CofA 
  • Also leapfrog from High Court. About 200 cases per year.
  • 12 justices of the Supreme Court  
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Civil Courts

  • 3-5 Judges hear the appeal which requires leave to appeal from appeal court or Supreme Court 
  • must be a matter of public importance

The European Court of Justice

  • Under A234 of Treaty of Rome 1957 an English Court can refer a point of European Law to the ECJ
  • ECJ's decision is binding but must be applied by the English Court
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The Tracks

You first need to fill out a claims form for your claim. 

The small claims track- in the county court. Cases below £5,000 (or 1000 if personal injury or housing/ parties encouraged to represent themselves & no legal aids costs available. The district Judge is informal and flexible in his approach.

The fast track- in the county court. Cases between £5-25k, although lower limit if housing or personal injury. Heard within a day by a Circuit Judge, with a strict timetable imposed (below 30 weeks).

The multi track- in the county court. Cases between £25-50k and straight-forward law. Personal injury cases will be heard in the County Court up to £50k. Heard by Circuit Judges.

In the High Court. Cases between £25-50k and complex law. Above £50k must be in the High Court and Defmation must be in the High Court. Heard by High Court Judges.

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ADR's

Negotiation

  • Most simple form of ADR
  • Informal negotiation- a discussion conducted by the disputing parties
  • Communication by; face to face discussion, letter, telephone, email.
  • Can however alternatively be carried out through the parties lawyers.
  • Parties reach a compromise and decide the level of damages or other remedy themselves. Not legally binding (in court they would be bound by Judges decision)
  • General examples, Domestic Disputes such as neighbour disagreements and Commercial disputes between businesses.

Mediation

  • A mediator is a independent third party 
  • Encourages parties to reach a compromise and settle the dispute themselves
  • The mediator's skills help the parties involved in the dispute to move away from who is right or wrong; but to working out how they can resolve the problem. Acts as a neutral go between 
  • Doesn't Judge the case 
  • Not legally binding
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ADR's

  • Shuttle mediation don't need to meet face to face 
  • General examples of businesses who carry out the service, Centre for effective dispute resolution and West Kent mediation service

Conciliation

  • Concilator meets parties seperately 
  • Identifies the issues tries to the parties to understand each other position 
  • Concilator may find a solution no one thought of
  • He will encourage them to come to a compromise but he will give his opinion and uggest a solution
  • Commercial mediation- employment disputes eg. sex discrimination 
  • The Advisory, Concilation and Arbitation Service provides a concilation service
  • It is voluntary and both parties must agree
  • Not legally binding
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ADR's

Arbitration

  • Arbitration governed by The Arbitration Act, Arbitator must fairly and impartially, Arbitrator determines the procedure.
  • Arbitrator, independent 3rd party- resolves disputes by makinga legally binding decision 
  • Arbitration Clause- included in business contracts state that disputes must be settled by Arbitration 
  • 1 arbitrator or a panel 2/3- parties choose who and number
  • The arbitrator is an expert in relevant subject matter 
  • Commercial disputes eg. Arbitration arranged bu Chattered Institute of Arbitrators [CIA] for Bristish Telecom and ABTA for Holiday disputes
  • Arbitration hearing parties meet together- can be represented by lawyers
  • Informal- by post, evidence form, photos etc- a bundle
  • Arbitrators are paid by losing party
  • Appeals on grounds that no reasonable arbitrator would have reached that decision- through the CIA
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ADR's

Tribunals

  • Similar function as courts 
  • Th tribunals, Courts and Enforcement Act 2007, provides a new structure 
  • Each tribunal is called a chamber within the standardised system. Each chamber has its own president 
  • Provides a 2 tier system, provides for appeals
  • Longstanding tribunals will remain outside the new system eg Employment 
  • Judge and 2 experts in the subject matter
  • Different Tribbunals for a particular type of disputes- hs it own procedures and rules of evidence.
  • Tribunals specialise in one area 
  • 70 types
  • Administrative Justice and Tribunals Council- supervise and review them
  • carried out in private 
  • Deals with on types of dispute eg. Employment Tribunal, Land, In house
  • Relatively formal some informal 
  • Parites legally represented 
  • Legally binding decision 
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Advantages and Disadvantages

Advantages of negotiation, mediation and conciliation

  • Cheaper than court trial. No lawyers are needed so cheaper compared to the court trial.
  • Ouick compared to courts- courts are extremely busy with resultant delays.
  • Non confrontational- can allow relationships to continue. Avoids the adversarial nature of court.
  • Specialists- service provided by specialists trained in facilitating the resolution to problems- mediation and conciliation

Disadvantages of negotiation, mediation and conciliation

  • Not legally binding- parties must be prepared to uphold their agreement. If a party breaks the agreement it cannot be enforced. 
  • Mediation, negotiation and conciliation is not likely to be successful if the parties aren't willing to compromise.
  • Relies on the parties abiding by the settlement
  • Sometimes one party is stronger- might be liable to intimidation 
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Advantages and Disadvantages

Advantages of arbitration, tribunals and courts

  • Legal expertise and experience of the Judge- paries should have confidence in the decision 
  • Some cases are publically funded eg. divorce and legal costs can be awarded- promotes access to justice.
  • Remedies are useful eg. damages, injunctions. Can be legally enforceable
  • Appeals- available if a party thinks the decision is flawed

Disadvantages of arbitration, tribunals and courts

  • Judges lacks specialist technical knowledge
  • Delays are common, lengthy- big workload of the court can be avoided in arbitration and tribunals.
  • Inflexible procedure- precedent 
  • Expensive- costs of lawyers and legal procedures
  • Can cause negative publicity.
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