- Created by: michaelmd12
- Created on: 26-04-19 09:56
County Court 3.2.1
There are about 200 County Courts but the government is planning to close 50 of these. The County Court can try nearly all civil cases. The main areas of jurisdiction are:
- all contract and tort claims
- all cases for the recovery of land
- disputes over equitable matters such as trusts up a value of £350,000.
Cases in the County Court are heard by a Circuit Judge or a District Judge. On very rare occasions it is possible for the judge to sit with a jury of 8. This will only happen for defamation cases or for the torts of malicious prosecution or false imprisonment.
High Court 3.2.2
The High Court is based in London but also has judges sitting in several towns throughout England and Wales. It has jurisdiction to hear any civil case and has 3 divisions; Queen's Bech Division, Chancery Division, Family Division.
High Court (Queen's Bench Division) 3.2.2
The biggest of the 3 divisions is the Queen's Bench Division. 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. Cases are normally tried by a single judge, but there is a right to a jury trial for fraud, libel, slander, malicious prosecution and false imprisonment cases. A jury is rarely used. There is also an Administrative Court in the Queen's Bench Division. This court supervises the lawfulness of the conduct of the government, of inferior courts and tribunls, and of other public bodies through judicial review.
High Court (Chancery Division) 3.2.2
The main business of the Chancery Division involves disputes concerned with such matters as:
- Insolvency, for companies and individuals
- the enforcement of mortages
- disputes relating to rust property
- copyright and patents
- intellectual propery matters
- contested probate actions.
There is also a special Companies Court which mainly deals with windin up companies. Cases are heard by a single judge, and juries are never used.
High Courts (Family Division) 3.2.2
This division hears family cases where there is a dispute about which country's law should apply and all inernational cases concerning family matters under the Hague Convention. In addition, it can hear cases which can be dealt with by the Family Court. Cases are heard by a single judge. The Crime and Courts Act 2013 created a new separate Family Court. The majority of family matters previously dealt with i the Fmaily Division are now dealt with by the Family Court. The Family Division can also deal with these cases, but is unlikely to unless the can is difficult or important.
Pre-trial Civil Procedures 3.3
Most people making a claim 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 their injuries or damaged their property. Using a method other than going to court is known as Alternative Dispute Resolution (ADR). The vast majority of cases are settled and do not go to court.
Pre-action protocols 3.3.1
Parties are encouraged to give information to each other, in an attempt to prevent the need for many court to be started. So before a claim is issued, especially in personal injury cases, a pre-action protocol has to be followed. This is a list of things to be done and if the prties do not follow the procedure and give the required information to the other party, they may be liable for certain costs ifthey then make a court claim.
Which court to use 3.3.2
If the other person denies liability or refuses to use ADR, then the only way to get compensation for the injury is to start a court case. The court to be used will depend on the amont of the claim. There are different limits depending on whether the claim is for personal injuries or damage to property.If the amount is less than £100,000 the case must be started in the County Court. Where the claim is £10,000 or less it is a small track case. The exception is for personal injury cases, where the claim is for £50,000 or less, the case must start in the County Court, and for less than £1,000 it is a small claim. If the claim is for more than the above amounts, a claiment can choose what court to start the case in.
Issuing a claim 3.3.3
If someone is using the County Court, then they can choose to issue the claim in any of the 200 or so Country Courts in the country. If they are using the High Court, then they can go to the one of the 20 District Registries or the main court in London. They need a claim form called 'N1'. The court office will give notes explaining how to fill in the form. Alternativly people can make a money claim online. The claim has to be filed at the court office and a fee will be charge in issuing the claim. The fees varies according to how much the claim is for. Ath the beginning of 2017, the fee for a claim up to £300 was £35. The more the claim the higher the fee. At the top end of the scale the fee is £10,000 for claims of £200,000 or more.
Defending a claim 3.3.4
When the defendent receives the claim form there are several routs which can be taken. The defendent may admit the claim and pay the full amount. Where this happens the case ends. The claiment has achieved their goal.In other cases the defendent may dispute the claim. If the defendent wishes to defend the claim, he must send either an acknowledgement of service (Form 'N9') or a defence to 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 an order that the defendent pays the money and cost claimed. Once a claim is defended the court will allocate the case to the most suitable track or way of dealing with the case.
The three tracks 3.4
The decision on which track should be used is made by thr District Judge in the County Court or the Master (aprocedural judge) in the High Court . To help the judge consider to which track a claim sould be allocated, both parties are sent an allocation questionnaire. There are threetracks:
- The small claims track - for disputes undr £10,000, except for personal cases where the limit in £1,000.
- The fast track - for straightforward disputes of £10,000 to £25,000
- The multi-track - for caes over £25,000, or for complex cases under this amount.
If it is necessary, especially where there is a complex point of law involved, the judge can allocate a case to a track that normally deals with claims of higher value. Alternatively, if the parties agree, the judge can allocate a case to a lower value track.
Small claims 3.4.1
These cases are usually heard in private, but they can be heard in an ordinary court. The procedure allows the District Judge to be flexible in the way he hears the case. District Judges are given training in how to handle small cases, so that they will take an active part in proceedings, asking questions and making sure both parties explain all their important points. The parties are encouraged to represent themselfs and they cannot claim the cost ofusing a lawyer from the other sie, even if they win the case.
Fast track cases 3.4.2
In fast track cases the court will set down a very strict timetable for the pre-trial matters.This is aimed at preventing one or both sides from wasting time and running up unnecessary costs. Once a case is set down for hearing, the aim is to have the case heard within 30 weeks, but in practice the wait is nearer 50 weeks. The actual trial wil usually be heard by a Circuit Judge and take place in open court with a more formal procedure than for small claims. In order to speed up the trail itself, the hearing will be limited to a maximum of one day and the number of expert witnesses restricted, with usually only one expert being allowed
Multi-track cases 3.4.3
Each case is heard by a judge who will also be expected to manage the case from the moment it is allcated to the multi-track route. This includes:
- identifying the issues at an early stage
- encouraging the parties to use an ADR if this is appropriate
- dealing with nyprocedual steps without the need for the parties to attend court
- fixing timetables by which the different stages of the case must be completed.
Case management is aimed at keeping the costs of the case as low as possible and making sure that it is heard reasonably quickly.
Reform of the civil courts 3.5
The present system of justice started in 1999 and is based on the reforms recomended by Lord Woolf. He stated that a 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 casesnat a reasonable speed
- be understandable to those who use it.
Lord Woolf found that virtually none of these points was being achieved in the civil courts, and slow, uncertain and complicated. His reforms brought in the three tracks system and gave judges more responsibilities for managing cases. The reforms also led to the simplifying of documents and procedures and having a single set of rules governing proceedings in botn the High Court and the County Court. Lord Woolf also wanted more use of information technology and greater use of ADR.
The effect of the Woolf reforms 3.5.1
The main improvements to civil cases have been that the culture of litigation has changed for the better, so that thereis more co-operation between the parties' lawyers. There have also been improvements in the delays between issuing a claim and the court hearing, but these are not as great as had been hoped. For example, there is still a wait of at least one year between issuing a fast track claim or a multi-track claim and the trail of the case in court. However, thare are still many problems with the civil justice system. The main problems are:
- ADR is not used enough
- costs of cases have continued to increase - in particular, cost in fast track cases are ofter far greater than the amount claimed
- the courts are still under-resourced - in particular the IT systems are very limited.
Further reforms 3.5.2
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 trails for lower value claims. The level of £1,000 for personal injuries claims is likely to increase to £5,000. The Civil Procedure Rules have been amended to emphasise that the courts deal with cases justly and at a proportionate cost. The winning party can only claim back costs where they re proportionate to the value claim.The latest Review was by Lord Briggs in 2016. He put forward several proposals. Two main ones are:
- that there should be an out-of-hours privatemediation service in the County Court and
- that an online court should be set up
Further reforms (Online court) 3.5.2
Lord Briggs has proposed thatthere should be an online court. In his interim report he said: 'there is a clear and pressing need to create an online court for claims up to £25,000'. He believes this court will give litigants effective access to nustice without having to incur the disproportionate cost of using a lawyer.
Appeal routes in civil cases 3.6
Once a desision 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 routs from the Country Court and the High Court. In addition, the value of the claim and the level of judge who heard the case affect which appeal route should be used.
Appeals from the County Court 3.6.1
For all claims the appeal route depends on the level of the 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 was heard by a Circuit Judge, then the appeal is to a High Court Judge
Appeals from County Court (second appeals) 3.6.1
There is the possibility of a second or further appeal. This appeal will always be to the Court of Appeal (civil division). However, such further appeals are only allowed in exceptional cases as set out in section 55 of the Access to Justice Act 1999, which states:
No appeal may be made to the Court of Appeal... unless the Court of Appeal conciders that-
- the appeal would raise an important point of principle or practice or,
- there is some other compelling reason for the Court of Appeal to hear it.
Appeals from the High Court 3.6.2
From a decision in the High Court the appeal usually goes to the Court of Appeal (civil division). In rare cases there may be a 'leapfrog' appeal direct to the Supreme Court. Sice 2015, such an appeal must involve an issue of which is of national importance or raiseissue of sufficient importance to warrent the leapfrog. In addition the Supreme Court has to give permission to appeal.
Appeals from High Court (Further appeals) 3.6.2
From a decision of the Court of Appeal there is a further appeal to the Supreme Court but only if the Supreme Court or Court of Appeal gives permission to the appeal
Advantages of using courts 3.7.1
The main advantages of using the courts to resolve a dispute are:
- The process is fair in that everyone is treated alike. The judge is impartial.
- The trial is conducted by a leagle expert with the decision being made by a judge who is an experienced and qualified lawyer.
- Enforcement of the court's decision is easier as any decision made by a court can be enforced through the courts.
- There is an appeal process with specific appeal routes from decisions made in the courts, so, if the claiment is not happy with the decision, it is usually possible to appeal against it.
- It may be possible to get legal aid, although legal aid for civil cases has been considerably reduced. There are still a few types of case where it is available in the courts. Legal aid is not usually available in tribunals or other methods of dispute resolution.
Disadvantages of using courts 3.7.2
The main problems in using the civil courts are:
- Cost - the costs 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 costs are often more than the amount claimed.
- Delay - there are many preliminary stages to go through that add to the length of a case. Even after the case is set down for hearing at court. The total of all this can mean that some cases are not finished for years.
- Complicated process - there maybe compulsory steps taken before a case is started in court. For exampe, for some types of case, the parties must use set pre-action protocols and give the other party certain information. When a case is started in court, there are forms to be filled in and set procedures to follow. These are all set out in the Civil Procedures Rule. All of this makes it complicated for an ordinary person to take a case to curt without legal advice.
- Uncertainty - there is no guarantee of winning a case. The person losing in a case may have to pay the other side's cost.This makes it difficult to know how much a case is going to cost in advance. Delays in cases can also add to uncertainty and cost.
Tribunals operate alongside the court system and have become an important part of the legal system. Many tribunals were created in the second half of the 20th century, with the developmet of the welfare state. They were created in order to give people a method of enforcing their entitlement to certain social rights. However, unlike Alternative Dispute Resolution were parties decide not to use the courts, the parties in tribunal cases cannot go to court to resolve their dispute. The tribunal must be used insted of court proceedings.
Role of tribunals 4.1.1
Tribunals enforce rights which have been grante through social and welfare legislation. There are many different rights:
- the right to a mobility allowance for those who are too disabled to walk more than a very shot distance.
- the right to a payment if one is made redundant from work
- the right not to be discriminated against because of one's sex, race, age or disability
- the right of immigrants to have a claim for political asylum heard.
Organisation of tribunals 4.1.2
Tribunals were set up as the welfare state developed, so new developments resulted in the creation of a new tribunal. This led to more than 70 different types of tribunal. Each tribunal was seperate and the various tribunal used different procedures. This made the court system confused an complicated. The whole system was reformed by the Tribunals, Courts and Enforcement Act 2007. This created a unified structure for tribunals, with a First-tier Tribunals to hear cases at the first instanceand an Upper Tribunal to hear appeals.
Organisation of tribunals (Frist-tier) 4.1.2
The First-tier Tribunal deals with about 600,000 cases each year and has nearly 200 judges and 3,600 lay members. It operates in 7 Chambers:
- Social Entitlement Chamber - this covers a wide range of matters such as Child Support, Criminal Injuries Compensation and Gender Recognition.
- Health Education and Social Care Chamber - this includes the former Mental Health Review Tribunal which dealt with appeals against the continued setention of those in mental hospitals, this Chamber also deals with Special Education Needs issues.
- War Pension and Armed Forces Compenstaion Chamber.
- General Regulatory Chamber.
- Taxation Chamber.
- Land , Property and Hounsing 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 such matters as unfair dismissal, redundancy and discrimination.
Organisation of tribunals (Upper Tribunal) 4.1.2
The Upper Tribunal is divided into four Chambers:
- Administrative Appeals Chamber - this hears appeals from Social Entitlement Chamber, Health, Education and Social Care Chamber and War Pensions and Armed Forces Compensation Chamber.
- Tax and Chancery Chamber.
- Land 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.
Composition of tribunals 4.1.3
Cases in the First-tier Tribunal are heard by a tribunal judge. Also, for some types of case, two non-layers will sit with the judge to make a decision. These people will have expertise in the particular field of the tribunal. For example, the two non-lawyers in a hearing about a claim to mobility allowance would be medically qualified, while there would be surveyors sitting on the Land Tribunals. In Employment Tribunals one person will usually be from an employers' organsation and the other from an employees' organisation. This gives them a very clear understanding of employment issues.
Procedure in tribunal 4.1.4
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 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 exception is in Employment Tribunals cases, where employees often have representation provided by their Trade Union. Where an applicant is putting his own case, then the tribunal judge must try to make sure that the applicant puts the case fully. The decision of the tribunal is binding.
Advantages of tribunals 4.2.1
Tribunals were set up to prevent overloading of the courts with the extra cases that social and welfare rights claim generate and also to be a specialist venue for such cases. For the applicant in tribunal cases, the advantages are that such cases are dealt with:
- more cheaply
- more quickly
- more informally
- by experts in the area.
Advantages of tribunals (Cheapness) 4.2.1
As applicants are encouraged to represent themselves and not use lawyers, tribunal hearings do not normally involve the costs of associated with court hearings. It is also rare for an order for costs to be made by a tribunal, so that an applicant need not fear a large bill if they lose the case.
Advantages of tribunals (Quick hearings) 4.2.1
Most tribunal hearings are very short and can be dealt with in on day.
Advantages of tribunals (Informality) 4.2.1
The hearing is more informal than in court. Parties are encouraged to present their own case. In addition, most cases are heard in private.
Advantages of tribunals (Expertise) 4.2.1
In some tribunals two non-lawyers sit to hear the case with the tribunal judge. These members of the panel are experts in the type of case being hear. This gives them good knowledge and understanding of the issue in dispute.
Disadvantages of tribunals 4.2.2
Although there are a number of advantages for the use of tribunals there are also some disadvantages:
- lack of funding
- more formal than ADR
Disadvantages of tribunals (Lack of funding) 4.2.2
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, such as in cases about whether an asylum seeker has the right to remain in the United Kingdom or whether a patient should remain in a secure mental hospital.
Disadvantages of tribunals (More formal) 4.2.2
A tribunal hearing is more formal than using ADR. The place is unfamiliar and the proedure can be confusing for individuals presenting their own case. Where applicants are not represented the judge is expected to take an inquisitorial role and help to establish the points that the applicant whishes to make. But this ideal is not always achieved.
Disadvantages of tribunals (Delay) 4.2.2
Although the intention is that cases are dealt with quickly, the number of cases dealt with by tribunals means that there can be delay in getting a hearing. The use of non-lawyer members on the panel can add to this problem as they sit part-time, usually one day a fortnight. If a case is complex lasting several days this can lead to proceedings being spred over a number of weeks even months.
Alternative Dispute Resolution 4.3
Using the courts to resolve a dispute can be costly, in terms of money and time. It can also be traumatic for the individuals involved and may not lead to a most satisfactory outcome for the case. An addition problem is that court proceedings are normally open to the public and the press, so there is nothing to stop the details of the case being published in local or national newspapers. It is not suprising, therefore, that more and more people and businesses are seeking other methods of resolving their disputes. Alternative methods are referd to as ADR, which stands for Alternative Dispute Resolution, and includes any method of resolving a dispute without using a court. There are many different methods which can be used, ranging from very informal negotiations between the parties, to a comparatively formal commercial arbitration hearing.
Alternative Dispute Resolution (Negotiation) 4.3.1
Anyone who has a dispute with another person can always try to resolve it by negotiating directly with them. Negotiation has the advantage of being completely private, and is also the quickest and cheapest method. If the parties cannot come to an agreement, they may decide to instruct solicitors, then the solicitirs would try to negotiate a settlement. Even when court proceedings have been commenced, the lawyers for the parties will often continue to negotiate on behalf of their clients, this is reflected in the high number of cases which are settled out of court. Once lawyers are involved there will be a cost element - clearly, the longer negotiations go on, the higher cost will be. One of the worrying aspects is the number of cases that drag on for years, only to end in an agreed settlement literally 'at the door of the court' on the morning that the trial is due to start. It is this situation that ADR tries to avoid.
ADR (Evaluation of Negotiation) 4.3.1
All methods of ADR have advantages and disadvantages. Negotiation is the method with the most advantages and the fewest disadvantages.
ADR (Advantages of negotiation) 4.3.1
- It can be conducted by the parties themselves. There is no need to use a lawyer or other people in the process.
- Negotiation can be used at any point in the dispute from the beginning right up to the start of the court hearing.
- It is the cheapest method of resolving a dispute, particularly where the parties do the negotiation themselves.
- A negotiated resolutioncan include agreement about future buisness deals. This can also be done in mediation and conciliation but connot be done where the court makes the decision
ADR (Disadvantages of Negotiation) 4.3.1
- It may not be successful, so that other ADR or court proceedings have to be used.
- It is not suitable where the parties are very antagonistic towards each other as they will not be prepared to co-operate in finding a resolution.
- If there are repeated unsuccessful attempts at negotiation, it may prolong the whole issue
This 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. He will explore the position with each party, looking at their needs and carrying offers to and fro, while keeping confidentiality. A mediator will not usually tell the parties his own views of the merits of the dispute; it is part of the job to act as a facilitator, so that an agreement is reached by the parties. However, a mediator can be asked for an opinion of the merits, and in this case the mediation becomes more of an evaluation exersise, which again aims at ending the dispute. Mediation is only suitable if there is some hope that the parties can co-operate. Companies who are used to negotiating contracts with each other are most likely to benefit from this approach. Mediation is also importnt in family acses. Parties in a family case must normally show that they have attended a Mediation Information and Assessment Meeting (MIAM) before starting any court proceedings. There are expections, such as where there has been domestic violence, where they do not need to attend a MIAM. Mediation can also take different forms, and the parties wil choose the exact method they want. The important point in mediation is that the parties are in control.
Mediation (Mediation Services) 4.3.2
There are a growing number of commercial mediation services. One of the main ones for business dispute 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 the big London law firms. In 2016 CEDR reported in it audits of mediation services that over the previous 12 months 10,000 commercial mediations had taken place through various mediation services. These mediations involved £10.5 billion worth of commercial claims. They also estimated that using mediation to resolve these disputes had saved £2.8 billion in management time, relationships, productivity and legal fees. There are also mediation services aimed at resolving smaller disputes, for example, those between neighbours. An example of such a service is the West Sussex Mediation Service which offers mediation for disputes between neighbours to resolve disagreements arising from such matters as noise, car-parking, dogs or boundary fence disputes. The West Sussex Mediation Service also offers mediation for workplace and family disputes. Other mediation services may offer mediation just for family issues. for example Kent Family Mediation Service offeres mediation for family based disputes on property, finances and children.
Conciliation is simular to Mediation in that a neutral third party helps to resolve the dispute, but the main difference is that the conciliator will usually play a more pro-active role. The conciliator discusses the issues with both parties in order for them to reach a better understanding of each other's position. He will also be expected to suggest grounds for comprimise, and the possible basis for a settlement. However, the conciliator has no authority to seek evidence of call witnesses. In industrial disputes the Advisory Conciliation and Abitration Service (ACAS) can give an impartial opinion on the legal position. As with mediation, conciliation does not necessarily lead to a resolution, and it may be necessary to continue with a court action. In this both mediation and conciliation differ from arbitation where the arbitrator will make a decision that is final and binding on the parties.
Advantages of mediation and conciliation 4.3.3
- For both mediation and conciliation the parties are in control and can withdraw from the process at any point. Also a comprimise cannot be reached without the agreement of both parties.
- The decision need not be strictly legal one stickiking to the letter of the law: it is more likely to be based on commercial common sense and compromise.
- This also makes it easier for companies to continue to do business with each other in the future, and it may include agreements about the conduct of future business parties. This is something that connot happen if the court gives judgment, as the court is only concerned with the present dispute.
- Mediation and conciliation avoid the adversarial conflict of the court room and the winner/loser result of court proceedings. It has been said that with mediation, everyone wins.
A high number of cases are resolved through mediation and conciliation. The Centre for Dispute Resolution claims that over 80% of cases in which it is asked to act are settled. It has also been found that even if the actual mediation session did not resolve the dispute, the parties were more likely to settle the case outside of court. It is also possible that the issue may at least have been clarified, and so any court hearing will be shorter than if mediation had not been attempted.