The Civil Courts (8)

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  • Created on: 17-10-18 10:40

Hierarchy Of The Civil Courts

——————————————— —— Supreme Court ——————————————————
—————— CRIMINAL ——————————————————————CIVIL ———————

————— Court Of Appeal ————————————————— Court Of Appeal ————

————— Crown Court —————————————— — ——High Courts Of Justice ——

———— Magistrates Court ————————————————— County Court ——————

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Courts Exercising Civil Jurisdictions

The courts are responsible for administering justice. The phrase “exercising civil jurisdiction” refers to courts that have the power to deal with civil cases.

The principle inferior court exercising civil jurisdictions is the county court, although magistrates courts hear some civil cases. There are three main superior courts that exercise civil jurisdictions: The High Court Of Justice, The Court Of Appeal And The House Of Lords.

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Appeals

If someone is unhappy about the decision made by the judge responsible for their case, they may be able to appeal against the decision to a higher court. In most civil cases however a judges permission to appeal is required.

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Inferior Courts: County Courts (1)

Established by the County Courts Act (1846) to operate as the chief lower courts for the trial of civil disputes, The County Court deals with the vast majority of civil disputes. The judges who preside over preceedings in County Courts are Circuit Judges appointed by the Crown on the advice of the lord chancellor.

Examples of cases heard in the County Court include:

  • landlord and tenant disputes
  • consumer disputes
  • personal injury claims
  • undefended divorce cases
  • debt problems
  • employment problems

Since the implementation of the Woolf Reforms, civil cases are assigned to one of three “tracks” according to their value.

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Inferior Courts: County Courts (2)

Small Claims:
This is an informal court where people can represent themselves without the need for lawyers. The strict rules of evidence do not apply and the judge will ask questions and come to a final decision. The Small Claims Tracy is reserved for:

  • matters not exceeding £10,000
  • where expert evidence is not required
  • where the trial will not exceed one court day.

Fast-Track:
This is more of a formal court where rules of evidence do apply. Cases are heard before a District or Circuit Judge. The Fast-Track hears more complicated matters reserved for:

  • cases with a value of between £10,000 and £25,000
  • where 2 experts in 2 fields are allowed
  • the trial will not exceed one court day.
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Inferior Courts: County Courts (3)

Multi-Track:
This is the court that hears the most complicated cases and is reserved for:

  • matters over £25,000 (up to an unlimited amount)
  • where unlimited experts are required
  • where unlimited time is allowed to hear the case
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Inferior Courts: Magistrates Courts

Although these are essentially criminal courts, magistrates courts also have a civil jurisdiction e.g. Council tax arrears and other recovery of small debts.

They also deal with questions concerning the residence and adoption of children and the giving of permission for persons under the age of 18 to marry where they cannot obtain their parents consent.

In civil cases appeal from the magistrates courts usually lies to a divisional court of the family division of the high court.

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Superior Courts: The High Court Of Justice (1)

The High Courts deals with the more complicated matters of the law where it is necessary to have a specialist judge called a “master”. It has the power to hear any civil case and ha store divisions, each of which specialises in hearing certain types of cases.
These Divisions are:

  • Queens Bench Division: This is the biggest of the three divisions. It deals with contract and tort cases where the amount claimed is over £100,000, though it can hear smaller claims where there is an important point of law. There are specialist courts within the Queens bench division. These include the commercial court which deals with insurance, banking and other commercial matters, the Admiralty Court dealing with matters relating to shipping and the Administrative Court which supervises the lawfulness Of conduct of national and local government>
  • The Chancery Division: The main business of this division involves disputes concerned with such matters as:
    Insolvency, The enforcement of mortgages, copyright and patents, intellectual property matters and contested probate actions.

Cases are heard by a single judge. Juries are never used in the Chancery Division

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Superior Courts: The High Court Of Justice (2)

  • The Family Division: Established by the Administration Of Justice Act 1970. This Division deals with all high court cases concerning marriage,family,property and children.

The jurisdiction of the divisional,Chancery and family courts is purely appellate (they only hear appeals). The High Court And County court multi-track are entirely different courts.

The divisional court of the queens bench division also exercises an appellate jurisdiction on points of law in cases stated by the magistrates court.

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Superior Courts: The Court Of Appeal

The court of appeal has two divisions. Civil and Criminal. The members of the court of appeal are: The lord Chief Justice, the master of the rolls, the president of the queens bench division, the chancellor of the high court, the president of the family division, the Vice President Of the court of appeal and about 35 Lord justices of appeal.

The Civil Division Of the court of appeal sits under the presidency of the master of the rolls, hears appeals from cases tried before the high court or the county courts. These appeals can be based on matters of law, fact or both.

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Superior Courts: The Supreme Court

For a long time, up until 2009, the House of Lords was the highest element of the English legal system. The House of Lords exercised its judicial function through a committee of the House composed of generally 5 Lords Of Appeal.

The constitutional reform act of 2005 provided for major modifications to be made to the court system. The role of the Law Lords was abolished and a new Supreme Court was established in its stead, This was fully implemented in 2009.

The constitutional reform act 2005 provided for major modifications to the court system. The role of the law Lords was abolished and a new Supreme Court was established in its stead.

In civil matters the court hears appeals from the court of appeal in England, From the court of session in Scotland and from the court of judicatory in Northern Ireland.

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The Court Of Justice Of The EU

The CJEU ensures the observance and recognition of community rules with regard to legal interpretation and application. It is concerned with disputes between member countries over community matters and hears appeals from member countries, individuals and the EU institutions and its rulings are binding.

The CJEU consists of 15 judges and is assisted by an Advocate General whose duties are to present reasoned conclusions on cases submitted to the court.

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ADR

Most people who have been injured do not want to start a court case unless they have to. They will first of all try to negotiate an agreed settlement with the person who caused the injuries. Using a method known as Alternative Dispute Resolution (ADR). The vast majority of cases are settled and do not go to court.

Using the courts to resolve disputes can be costly, in terms of both money and time. It is not surprising therefore that more and more people and businesses are seeking other methods of resolving their disputes. Alternative methods are referred to as ADR and that includes ant method of resolving a dispute without resorting to the courts.

The methods of ADR are arbitration, conciliation and mediation

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Issuing A Claim

If someone is using the County Court, then they can choose to issue the claim in any of the 200 or so county courts in the country. If they are using the High Court, then they can go to one of the 20 district registries for the main court in London. They also need to file a claim form called N1.

The claim has to be filedAt a court office and a fee will be charged for issuing the claim. This fee varies according to how much the claim is for. At the beginning of 2017, the fee for, a claim of up to £300 was £35. The more the claim is for, the higher the fee.

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Defending A Claim

When the defendant receives the claim form there are several roots which can be taken. The defendant may admit the claim and pay the full amount. When this happens the case ends. In other cases the defendant may dispute the claim. If the defendant wishes to defend the claim, he must stand either egg knowledge meant of service (form N9) or a defence to the court within 14 days of receiving the claim.

If the Defendent does not do either of these things, then the claimant can ask the court to make in order that the defendant pays the money and costs claimed Once a Claim is defended the court will allocate the case to the most suitable ‘track’ or way of dealing with the case.

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Reform Of The Civil Courts

The present system of justice started in 1999 and is based on the reforms recommended by Lord Woolf. He stated that the civil justice system should:

  • be just in the results it delivers
  • be fair in the way it treats litigants
  • offer appropriate procedures at a reasonable cost
  • deal with cases at al reasonable speed
  • be understandable to those who use it.

Lord Woolf found that virtually none of these points were being achieved by the civil courts. His reforms brought in the three track system and gave judges more responsibility for managing cases.

The reforms also led to the simplifying of documents and procedures and having a single set of rules governing proceedings in both the High Court and the County Court. Lord Woolf also wanted more use of information technology and greater use of alternative dispute resolution.

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The Effect of the Woolf reforms

The main improvements to civil cases have been that the culture of litigation has changed for the better so that there is more co-operation between the parties lawyers. There have also been improvements in the delays between issuing a claim and the court hearing.

Another improvement has been in the number of cases that settle. Even with all the improvements the Woolf reforms brought to the civil justice system, there are still many problems with it. The main problems are:

  • alternative dispute resolution is not used enough
  • costs of cases have continued to increase expecially in fast track cases in which the costs are generally far greater than the amount claimed.
  • the courts are still under resourced.
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Further Reforms

Since the Woolf Reforms, the civil case system has been reviewed and some more changes made. The financial limits for small claims and fast track cases have been increased to avoid expensive trials for lower value claims.

The civil procedure rules have been amended to emphasise that the courts deal with cases justly and at a reasonable cost.

The latest review was by Lord Briggs in 2016. He put forward several proposals. Two main ones are:

  • That there should be an online court
  • That there should be an out of hours private mediation service in the county court
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Briggs Online Court Idea

Lord Briggs has proposed that there should be an online court. He believes this court would give litigants effective access to justice without having to incur the disproportionate cost of using lawyers.

There would be a three stage process:

Stage 1: A largely automated, interactive online process for the identification of the issues and the provision of documentary evidence

Stage 2: Concilation and case management carried out by case managers.

Stage 3: If the case is not solved by stage 2, then there would be a resolution by a judge. For this the online court would use documents on screen or video calls.

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Appeal routes in civil cases

Once a decision has been made in either the county court or the high court, there is always the possibility of appealing against that decision. There are different appeal routes from the county court and the high court.

For all claims the appeal route depends on the level of judge hearing the case. This means that:

  • if the case was heard by a district judge, then the appeal is to a circuit judge in the same county court.
  • if the case wa Shepard by a circuit judge then the appeal is to a high court judge.

There is a possibility for a second or further appeal. This appeal would be to the court of appeal (Civil Division). This would only be allowed in exceptional cases, for example if the appeal would raise an important point of practice.

From a decision in the high court the appeal usually goes straight to the Court Of Appeal (Civil Division). From a decision of the court of appeal there is a further appeal to the Supreme Court.

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Advantages of using the courts

1: The Process is fair in that everyone is treated alike. The judge is impartial
2: The trial is conducted by a legal expert with the decision being made by a judge who is an experienced and qualified lawyer.
3: Enforcement of the courts decision is easier as any decision made by a court can be enforced through the courts
4: There is an appeal process with specific appeal routes from decision made in the courts, so if the claimant is not happy with the decision, it is usually possible to appeal against it.
5: It may be possible to get legal aid, although legal aid for civil cases has been considerably reduced.

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Disadvantages of using the courts

1: The cost of taking a case to court are often more than the amount claimed. In the high court the cost can be hundreds of thousands of pounds. For smaller claims, the corsets are often more than the amount claimed.
2: There are many prelimary stages to go through that add to the length of a case. Even after the case is set down for hearing at count there is still a long wait, usually about one year for larger claims before the case is heard in court. This can mean it can take years to finish cases.
3: There May be compulsory steps to be taken before a case is started in court. For example, for some types of case, the parties must use set pre-action protocols and give the other party certain information.
4: There is no guarantee of winning a case. The person losing a case may have to pay the other sides costs as well.

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What are Tribunals

Tribunals are outside the ordinary judicial system and are not by the most part staffed by lawyers. They operate alongside the court system and have become a very important part of the legal system. They were created in order to give the people a method of enforcing their entitlement to certain social rights.

Tribunals are usually made up of a panel of three individuals. In addition to the chairman there will be two legally qualified members. Peoples no appear before tribunals do not have to be represented by a legal professional, they could chose to be represented by anyone from a trade union official or even an account depending on the nature of the case

However unlike ADR where the parties decide not to use the courts, the parties in tribunal cases can not go to court. The tribunal must be instead of the court proceedings.

Definition: forums used instead of a court for deciding certain types of disputes. They are less formal than courts.

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Role of Tribunals

Tribunals enforce rights which have been granted through social and welfare legislation. There are many of these rights, such as:

  • the right to mobility allowance for those who are too disabled to walk more than a very short distance
  • the rightvto payment if one is made redundant at work
  • the right to not be discriminated against because of ones sex,race or gender
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Organisation of Tribunals

Tribunals were set up as the welfare state developed, so new developments resulted in new Tribunals being created. This led to more than 70 different types of Tribunals of which made the system very complicated and confusing.

The whole system was reformed by the Tribunals, Courts and Enforcement Act 2007. This created a unified structure for Tribunals, with a first-tier tribunal to hear cases of first instance and an upper tribunal to hear appeals

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First-tier Tribunals

The first tier tribunal deals with about 600,000 cases each year and has nearly 200 judges And 3600 lay members. It operates in seven chambers (Divisions) these are:

  • Social entitlement chamber: this covers a wide range of matters including child support, criminal injuries compensation and gender recognition.
  • Health, education and social care chamber: this includes the former mental health review which dealt with appeals against the detention of those in mental hospitals. This chamber also deals with special education needs issues.
  • War Pensions And armed forces compensation chamber
  • General Regulatory Chamber
  • Taxation Chamber
  • Land, Property and Housing Chamber
  • Asylum and Immigration Chamber

As well as these there is one tribunal which still operates separately from the first tier tribunal. This is the employment tribunal which hears claims for matters of unfair dismissal, redundancy and discrimination.

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Upper Tribunal

The upper tribunal is divided into four chambers (divisions). These are:

  • Administrative Appeals Chamber: Which hears appeals from the social entitlement chamber, Health,Education and Social Care Chamber And War pensions and armed forces compensation chamber.
  • Tax And Chancery Chamber
  • Lands Chamber
  • Asylum And Immigration Chamber

From the Upper Tribunal there is a further possible appeal route to the Court Of Appeal And From here a final appeal to the Supreme Court.

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Composition of Tribunals

Cases in the first-tier tribunal are heard by a tribunal al judge. Also, for some types of case, two non-lawyers will sit with the judge to make the decision. These people will have expertise in the particular field of the tribunal.

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Procedure in Tribunals

Both sides must be given an opportunity to put their case. In some Tribunals, especially employment and asylum tribunals, this will be done in a formal way with witnesses giving evidence on oath and being cross examined. Other tribunals will operate in a less formal way.

Funding for representation is only available in a few Tribunals, so most applicants will not have a lawyer, but will present their own case. The decision of the tribunal is binding.

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Advantages of Tribunals

  • Cheapness: As applicants are encouraged to represent themselves and not use lawyers, Tribunal hearings do not usually involve the costs associated with court hearings.
  • Quick Hearings: Most Tribunal hearings are very short and can be dealt with in one day.
  • Informality: The hearing is more informal than in court. Parties are encouraged to present their own case. In addition, more cases are heard in private.
  • Expertise: In some tribunals two non-lawyers sit to hear the case with the tribunal judge. These people are experts in the area in question.
  • Personnel: The personnel of administrative Tribunals consists of people possessing special knowledge in the subject brought before the tribunals.

For the applicant in tribunal cases, the advantages are that such cases are dealt with:

  • more cheaper
  • more quickly
  • more informally
  • by experts in the area
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Disadvantages of Tribunals

  • Lack of funding: Legal aid funding is not available for most Tribunals, which may put an applicant at a disadvantage if the other side uses a lawyer. Legal aid is available for cases where fundamental human rights are involved.
  • More formal than ADR: A tribunal hearing is more formal than using ADR. The place is unfamiliar and the procedure can be confusing for individuals presenting their own cases.
  • Delay: Although the intention is that cases are dealt with quickly, the number of cases dealt with by Tribunals means that there can be delays in getting a hearing The use of non-lawyers as members of the panel can add to this problem as they sit part-time, usually one day a fortnite. If a case is complex this can leed to proceedings being spread over several weeks or even months
  • Right Of Appeal: There is no general right of appeal.
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Negotiations

Anyone who has a dispute with another person can always try to resolve it by negotiating with them.

This has the advantage of being completely private (away from media), And is also the quickest and cheapest method of resolving a dispute. If the two parties can not come to an agreement then they may instruct solicitors to do it for them who will often look to negotiate a settlement. Even when court proceedings have commenced, the lawyers for the parties will often continue to negotiate on behalf of their clients and this is reflected in the high number of cases which are settled out of court.

One of the worrying aspects is the number of cases that drag on for years, only to end in an agreed settlement on the morning that the trial is due to start

Definition: The Process Of trying to come to an agreement

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Mediation

There is where a neutral mediator helps the parties to reach a compromise solution. The role of a mediator is to consult with each party and see how much common ground there is between them. They will explore the position with each party, looking at their needs and carrying offers to and fro.

A mediator will not express their own opinions. Mediation is only suitable if there is some hope that the parties can co-operate.

An advantage of mediation is that the decision need not be a strictly legal one, it is more likely to be based on commercial common sense and compromise. It also avoids conflict and it is said that in mediation, everyone wins

Definition: Using a neutral person in a dispute to help the parties come to a compromise solution.

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Mediation Services

There are a growing number of commercial mediation services. One of the main ones for business disputes is the Centre for effective dispute resolution (CEDR) which was set up in London in 1991. It has many important companies as members, including almost all of London’s big law firms.

In 2016 the Centre for effective dispute resolution reported that over the previous 12 months 10,000 commercial mediations had taken place through various mediation services. This mediation is involved £10.5 billion worth of commercial claims. They also estimated that using mediation to resolve these disputes had saved £2.8 billion in legal fees.

The main disadvantage of using mediation services is that there is no guarantee the matter will be resolved, and it will then be necessary to go court anyway which will have made the process more costly than it would have been if it went straight to court. However evidence suggests that large numbers of cases do get solved.

There are smaller mediation services like West Sussex Mediation Service which deal with smaller disputes like issues with neighbors

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Arbitration

This can be conducted confidential and in private and is becoming more and more common in the commercial world as a method of settling disputes. Both parties appoint a person called an arbitrator. In the event of a dispute arising after the contract has been signed, both parties agree to let the arbitrator make judgement on the dispute.

The decision of the arbitrator is binding and enforceable by the court. It is an exile t way of preventing disputes escalating and preserving business relationships.

Arbitration is quicker, cheaper and more informal than going to court and it is confidential. The law behind all of it was consolidated by the arbitration act 1950 as supplemented by the arbitration act 1975 and amended by The Arbitration Act Of 1996.

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Concilation

Concilation is where an independent third party, the conciliator, offers up possible solutions to the parties and it is up to them to decide which to use.

Concilation is often used when there is a particular legal dispute, rather than more general problems. The Concilator will be a specialist in the field being questioned.

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Judicial Control Over Tribunals

Judicial control is initially exercised by the right of appeal provided by the tribunals and inquiries act 1971. In addition, the courts have the power of review based on the common law power of the queens bench division to examine the extent and mode of exercise of the powers of the tribunal.

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