Civil Process

What is the function of civil justice?
Serves private interest, but has huge societal benefits e.g. regulating relationships
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What has the huge reform in the last 20 years been moving towards?
Private dispute resolution- resolving things outside courts
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What are the Justiciable problems?
Wide range of issues, e.g. issue with phone contract or having children taken away from you, usual response is direct personal (doing it yourself)
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50% of those personally dealing with issues give up due to stress or it causing illness
Some take no action, low income bracket or no educational qualifications, a fear of the cost or a fear that they have no power
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What are the 3 issues of the Civil Process?
cost, complexity, delay
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Delay: adversarial skirmish, used as a tactic by D since it causes illness or people give up, increases cost, can lead to unfair settlement for wanting to end it sooner
Is it always a bad thing? the claimant may take time to know what they're asking for e.g. in P.I, could lead to a settlement being produced to avoid further waiting
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In addition, delay:
exacerbates distress of victim, businesses/relationships can collapse in that time, witnesses are lost, can be to lawyers advantage as they can then juggle several cases and make more money
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What are the four areas where it may be a problem?
time taken to process case from initial claim to final settlement, delay in obtaining hearing date, time taken by hearing itself
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What is the problem for the claimant?
it's a gamble, if you lose you have to pay costs,in small settlements (involving individuals) winners only get around 60% of their money
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Why is cost a problem?
uncertainty, justice out of reach, tactic used by D, perception of cost, disproportionate
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Why is complexity a problem?
you need a lawyer to interpret, problems become defined as legal and made more complicated, accessing courts is complex, procedure, terminology, increase costs, increase delays
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Summary:
We must identify problems accurately: what/who causes problems, what evidence supports these points, then we can see what needs to be reformed and how reforms are working
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What did Lord Woolf's reforms (20 years ago) aim to do?
be just in delivered results, fair in how litigants are treated, appropriate procedure at reasonable cost, deal with cases at reasonable speed, understandable to users (not lawyers), responsive to needs of users, as much certainty as possible, effec
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effectively and adequately resourced
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What were his 'new legal landscape' ideas?
emphasis on pre trial cases (not reaching courts), a new tracking system (giving cases proportionate systems e.g. small claims and big claims. Judicial case management to prevent adversarial skirmish, move from substantive to proportionate justice
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What are substantive and proportionate justice?
SJ- correct outcome true to facts, PJ- recognising that resources are finite, time matters, resources matter
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What is 'three dimensional justice'?
correct results, expeditiously, Within limited resources Lord Neuberger says, we must establish justice and access to everyone, we must move cases on at an appropriate speed and cost
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Allocation of cases: you fill in a questionaire to speed up the process
small claims up to £10,000, Fast track- £10,000-£25,000 Multi Track- above £25,000 or more complex cases
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Small claims track
limit of £10,000 (£1,000 for personal injury) bc you will get a proportionate response bc is small. informality (relatively) e.g. sat in an office rather than court- bc people don't understand law, informality encourages people to access it.
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interventonist approach- judge gets very involved in the case- we want more people to access the law, if the judge helps people more people will feel comfortable. Paper adjudication (judge looks at paper and makes a decision( if small claim)) this is
swift and less costly. Generally a no cost order will be made in small claims court, people have certainty about what it will cost, you could even rep. yourself. tailored directions- people are shown what to do to rep. themselves.
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legal aids not available- you rep. yourself, cheaper. No experts are allowed without leave of court to get proportionate justice
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What are the features of fast-track?
streamlined, offers more than small claims though, standardised procedures- avoid complexity, 30 week period from directions to trial- adds certainty, one day trial maximum- speedy (although the speed before the trial is more relevent) No more than
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two experts
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Multi track procedures
flexible procedure to 'fit' the case, some need to be long and and complex, Docketing of cases- same judge tries to see case all the way through- new judges slow case down, judge tries to keep case on track through directions, questionnaires, case ma
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What is the evaluation of this?
it is positive early all- esp in early 2000s, less adversarial- more judges getting involved, pre action protocols encouraged settlement, settlements on basis of information, joint experts working well, unified rules are less complex
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Baldwin's 2002 survey on Small Claims Process
small rise in small claims cases, litigants 'happy' with experience, "informal, accessable, flexible and less costly approach"- Madge. 75% of litigants broadly satisfied (50% lose, but 75% were quite satisfied)
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But:
used by repeat players e.g. landlords- is it really helping people? not really- being used by people chasing small debts and landlords. Enforcement is an issue e.g. loser refusing to pay, Second class justice? Don't go to court, see D, many people
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want justice rather than speed
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Woolf: Successful generally?
Emerging 2001 findings- many more settlements, litigation seen as last resort, PPs concentrate minds on issue at stake
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BUT:
pre trial process increases costs, lawyers are delaying issues claims to avoid being locked in to the timetable
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Is this successful generally: The Management of Cases 2005
improved litigation culture: fewer cases going to court, costs have been front loaded, not reduced.
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delay:
issue of claim to trial in county court: 1990-81 weeks, 2005-52 weeks. But delay was no better, because lawyers were doing prep and gathering info before clock began
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Review of Civil Litigation Costs (2009)- The Jackson Report
"to promote access to justice at proportionate cost" through looking at behaviour of parties, effect of judicial case management, Suggestion of more proportionate justice needed
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The Briggs Report 2016
Courts remain inaccessible: Costs remain prohibitive – legal costs and the risk of losing Culture, jargon, procedure and complexity = administered by lawyers for lawyers CPR unintelligible to average LIP Delay in CA hearings affects all below
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Introduction of online court (up to £25000)
Second class? Usable by everyone? Can amount be divorced from complexity?
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Zander agrues? (leader in this area)
If we had known huge upheaval would lead to: Increased costs Negligible effect upon delay Hugely increase uncontrollable judicial discretion We wouldn’t have done it! Undoubtedly there have been benefits – the question is – where they worth it?
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Other cards in this set

Card 2

Front

What has the huge reform in the last 20 years been moving towards?

Back

Private dispute resolution- resolving things outside courts

Card 3

Front

What are the Justiciable problems?

Back

Preview of the front of card 3

Card 4

Front

50% of those personally dealing with issues give up due to stress or it causing illness

Back

Preview of the front of card 4

Card 5

Front

What are the 3 issues of the Civil Process?

Back

Preview of the front of card 5
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