Civil disputes involve individuals bringing claims against other individuals. Such claims can arise within areas of contract, tort, land, employment and family law.
There are different divisions:
- County Courts
- The High Court
- The Court of Appeal (Civil Division)
- The House of Lords
Each Court has a different jurisdiction and deals with different matters.
They are situated in all large towns and cities, and their procedures are governed by the County Courts Act 1984.
The Jurisdiction of the County Court:
- If the defendant is a company, registered office must be situated there.
- All contract claims & almost all tort actions up to a value of £50,000 can be tried in the county court; the only tort action that can't be tried is libel.
- Most county courts deal with divorce cases, bankruptcy cases, tax cases, land law disputes.
- All fast-track actions must be taken in the county court.
- Appeals are heard by a circuit judge (small claims cases), a single High Court judge (fast-track cases) or a court of appeal (multi-track cases).
- In all cases leave to appeal must be granted.
Small Claims Arbitration procedure: has a jurisdiction to hear cases up to a value of £5000 (£1000 for personal injury claim). Less formal procedure and a district judge presides over this (legal aid not available). This arbitration has dealt with many cases that could not have been pursued in the county court itself because of the high costs, delay and complexity.
The High Court
The high court is set up in divisions: Queens bench, chancery and family division. There is no financial limit to the jurisdiction of the high court.
Queens Bench Division: traditionally hears contract and tort actions, it also has jurisdiction to hear defamation (mainly libel) cases. The Queens Bench is the most important of the divisional courts and has three main areas of jurisdiction:
- under the magistrates courts act 1980 appeal to the queens bench is by way of case stated on a point of law.
- most important area of jurisdiction: 2 judges asses the legality/decisions of public bodies, especially of government ministers.
- has oversight of all inferior courts.
Chancery Division: mainly exercises an equitable jurisdiction and deals with contested probate matters, trusts, mortgages, bankruptcies, company and partnership cases and taxation matters.
Family Divisions: has jurisdiction over matrimonial matters, including contested divorce actions, wardship, adoption and uncontested probate matters. Example: Re A (conjoined twins) 2000.
Court of Appeal (Civil Division)
Most appeals to this court come from the high court, but it may also hear appeals from multi-track actions in the county court. Although most appeals involve questions of law, the court will also hear appeals over the amount of damages awarded, e.g in libel cases.
Leave to appeal must be granted either by the lower court or by the court of appeal itself. After the hearing, the Appeal Court can reverse or uphold the lower court's decision, vary the award or (rarely) order a retrial.
House of Lords
Unlike all other courts described above, the House of Lords, when hearing civil cases, sits as a UK court, as it takes civil appeals from both Scotland and Northern Ireland. It only hears approximately 60 cases a year, mostly civil, many of which concern tax law.
The majority of appeals come from the Court of Appeal or the Scottish Court of Session, but it is possible for cases to come directly to the House of Lords from the High Court using the "leap-frog" procedure, though this is rare.
Leave to Appeal to the House of Lords must be given either by the lower court, usually the Court of Appeal, or by two law lords, where such leave has not been granted. Only cases that raise a point of law of general public importance will be heard here.
Disadvantages of Civil Courts
Too expensive: Because of the complexity of the civil courts procedure, lawyers are usually needed. High Court litigation is not for the inexperienced, so barristers draft the pleadings and advise on the evidence. To employ such legal expertise is expensive.
Delays: The civil justice review observed that the system was overstretched and the time between the incident that gave rise to the claim and the trial could be up to 3years for county courts and 5years for the high court. Long delays placed intolerable psychological and financial burdens on accident victims. Furthermore it was harder for witnesses to remember their evidence.
Injustice: The rules on payments in court increases the unfairness of the pre-trial procedures. For every 9000 personal injury cases commenced, only 300 reached trial.
The Adversarial Process: many problems result from this process which encourages tactical manoeuvring rather than cooperation. It would be far simpler, therefore far cheaper for each side.
Advantages of the Civil Court
Compulsory Process: there is no other process by which you can effectively compel the other side to come to a forum to resolve a dispute.
Formality of Procedures: rules of evidence, disclosure and legal argument all ensure a fair process. This process is supervised with a judge, who is a trained and qualified expert in the law and legal processes.
Appeal Process: No other dispute resolution process allows for appeals. In many tribunals, there is no appellate tribunal, and an appeal to the Queens Bench Divisional Court is only allowed on a point of law.
Legal Aid: legal aid is still widely available for court litigation than for any alternative. lawyers are also more likely to litigate on a conditional fee basis in court than in tribunals, arbitration or mediation.
Law making and development: Only courts can develop and make legal rules through the doctrine of precedent.
Enforcement of decision: courts have greater powers to enforce their decisions than any other dispute resolution agency.
The Civil Justice System (after April 1999)
On 26 April 1999, new civil procedure rules (CPR) came into force. They constitute a fundamental reform of the civil justice system, introducing the main recommendations of Lord Woolf. The reformed rules aim to eliminate unnecessary cost, delay and complexity.
The first rule of the CPR sets the overriding objective of the whole system - that the rules should enable the courts to deal with cases "justly". The parties and their lawyers are now expected to assist the judges in achieving this objective. Dealing with a case justly involves the following factors: ensuring the parties are on an equal footing, saving expense, ensuring proportionality in the way a case is dealt with, ensuring it is dealt with expeditiously and allotting to it an appropriate share of the courts resources.
the emphasis of the new rules is on avoiding litigation by means of pre-trial settlements. Pre-action protocols aim to encourage: more pre-action, earlier and more comprehensive exchange of information, improved pre-action investigation, a settlement before trial proceedings have commenced.
If the party cannot settle, the parties should be able to go to trial on a more informed basis and thus ensure that the trial itself can run to a tighter timetable.
Reason For Existence:
•Social legislation created with the invention of the ‘welfare state’
•Legislation created the tribunal as a forum for settling disputes
•Exists alongside the court structure (if a tribunal exists then cannot opt to go to court)
Types of cases: Administrative (housing and mental health), Employment (employee v employer), Social Security (local benefits).
Informal: no rules of evidence, panel do not wear wigs/robes, more inquisitorial than adversarial.
Make up of panel: a panel of three (legally qualified chair with two lay people), specialised input in the decision making for example: employment tribunal would have legally qualified chair, one lay person representing the interest of the employees (e.g trade union member), and the other representing the interest of the employers (e.g someone from a professional association).
Result: Binding - with limited appeal rights. Can only appeal on a point of law or a point of natural justice.
Advantages of Tribunals
Speed: tribunal cases come to court quickly and are often dealt with in a day.
Cost: tribunals don't normally charge fees, with each party paying their own cost.
Informality: wigs not worn, strict rules of evidence do not apply and attempts are made to create an unintimidating atmosphere.
Flexibility: the do not operate strict rules of precedent and are therefore able to respond more flexibility than courts.
Specialisation: Tribunal members often have previous expertise.
Awareness of policy: the expertise of tribunal members means that they are likely to understand the policy behind legislation.
Privacy: tribunals may sometimes meet in private so that individuals are not obliged to have their problems aired in public.
Reduced pressure on courts: without tribunals courts would be swamped with cases.
Disadvantages of Tribunals
Lack of openness: some tribunals held in private may lead to suspicion about the fairness of their decisions.
Unavailability of Legal Aid: full civil legal aid is only available for three tribunals - prison, disciplinary, mental health and the parole board.
Lack of reasons: reasons for decisions are not always given.
Too complex: tribunal procedures have become more legalistic. self representation is also difficult so legal expertise may be necessary.
Lack of accessibility: meetings in private.
Lack of appeals: there is no absolute right to appeal from a tribunal - such rights exist only when laid down by a statute.
Reason for existence: Arbitration Act 1996
Types of Cases:
- small claims - although heard in county court still more like arbitration than litigation. small claims is a civil claim worth £5000 or less, heard in judges chambers with just the two parties and the judge. Both sides present their case and ask the judge to rule (arbitrate).
- commercial cases - disputes involving business etc. –Usually there is a contract which includes a Scott v Avery clause which means the companies have agreed that in the event of a dispute the parties will use arbitration instead of going to court.
- Consumer cases - Becoming increasingly popular to offer arbitration to settle disputes quickly and amicably. E.g. ABTA may offer arbitration to resolve a dispute between a customer and a tour operator.
Advantages of Arbitration
- the parties have greater control than if the case was pursues in court, for example they can chose the arbitrator, the procedure to be adopted, the time and place and the length of arbitration.
- arbitration is totally private - an important consideration for commercial disputes.
- in addition to having legal knowledge of the issue in dispute, an arbitrator will also be an expert in that area.
- small claims arbitrator by a district judge in the small claims court has become the most popular forum for consumer arbitration.
Disadvantages of Arbitration
- As for all forms of ADR there is no legal aid available.
- The opportunity to appeal the decision is much more restricted than it would be from a court decision.
- Just as with mediation and other consensual forms of ADR, if the parties' positions are entrenched, arbitration is not a realistic possibility for dispute resolution.
- As with all forms of ADR an arbitrator's decision is more difficult to enforce than a court-backed order.
This is where a neutral person (the mediator) helps the parties to reach a compromise. The job of the mediator is to consult with each party and see how much common ground there is between them. S/he should act as a facilitator, taking offers between the parties. The mediator doesn't offer an opinion. Mediation is most suitable where there is some chance that the parties will co-operate. Mediation is not legally binding on the parties. Mediation Services There are a number of organisations that offer mediation services. One of the main ones is the Centre for Dispute Resolution Many companies use their mediation services to save £1,000s in legal fees. The only disadvantage of using mediation to settle a dispute is there is no guarantee that a settlement will be reached. This means that you still have to use the courts, so in effect failure at the mediation stage can result in extra delays and extra costs. However, the Centre for Dispute Resolution report that around 80% of the disputes they deal with are settled without the need for any court action.
Advantages of Mediation
- Unlike other forms of ADR, mediation seeks to reflect the interests of both parties, not their legal rights. Because of this, only mediation offers a "win,win" solution. Therefore it allows the relationship between parties to be preserved. This is important in both family and commercial disputes.
- Mediation is usually the quickest and cheapest form of ADR.
- Mediation is the form of ADR most actively encouraged by the courts under the civil procedure rules.
- As with arbitration, if mediation fails to produce a resolution to the dispute, the parties retain their right to pursue their claims in court.
Disadvantages of Mediation
- As with arbitration, mediation cannot work if the parties are entrenched.
- There is no legal aid available.
This is similar to mediation where a neutral third party helps the parties to resolve their dispute, however, the conciliator plays a more active role in the process. S/he will be expected to suggest ways in which a compromise could be reached. Conciliation is not legally binding on the parties.
This is the simplest form of ADR. Where two people have a dispute they can negotiate a solution themselves. The advantages to the parties involved are that it is completely private and it's fast and cheap. Where parties to a dispute cannot settle it themselves they may instruct solicitors who will negotiate on their behalf. Even when negotiation fails at these early stages of a dispute and court proceedings start solicitors will usually continue to negotiate on their client's behalf. This results in many cases being settled out of court.