civil courts + dispute resolution

• civil courts

  • deal with civil claims where individual or business believes their rights have been infringed.
  • could be contract law, tort law, company law, family law, employment law.
  • role is to resolve dispute between claimants and defendants and impose remedies in the form of compensation or injunctions.
• jurisdiction of the county court

  • tries most types of civil cases up to £100,000 in value and cover
  • such as negligence, tort, contract, inheritance, divorce, bankruptcy, insolvency cases
  • housing, probate, small, fast and multi track claims
• high court

  • based in London
  • has various circuit judges who sit in various town and can hear cases.
  • it has 3 divisions: King's bench division, chancery division, family division.
  • hears cases over £100,000 in value.
• king's bench division (KBD)

  • largest division, has jurisdiction to hear cases above £100,000 or smaller cases that involve complex law.
  • vast majority involves contract or tort law matters.
  • hears applications for judicial review in delegated legislation cases and human rights cases.
  • includes the commercial court, admiralty court, circuit commercial court, technology and construction court.
• chancery division

  • jurisdiction to hear claims relating to: business, land and property disputes over £100,000. Disputes over trust, intellectual property claims, insolvency, probate claims.
• family division had jurisdiction of the following:

  • cases under the child abduction and custody act 1985
  • court protection work and other family matters under the family law act 1996.
  • removal of a child by social services under the children act 1989.
  • high value divorces and other issues either through appeals or because of the complexity of the case.
• pre - trial procedures

  • aims to resolve as many disputes as possible without litigation.
  • civil system encourages people to try and negotiate rather and going to court and to use alternative methods to resolve disputes.
  • also an online system run by ministry of justice's called 'money claim online' which attempts to solve financial disputes between parties.
• pre-action protocol

  • claimant should contact defendant and set out the claim.
  • attempts should be made to resolve dispute. (could be through use of solicitors)
  • alternative methods of resolving dispute should be considered and attempted.
  • if parties do not follow this procedure then they can be liable for certain costs if they then go on the make a court claim.
• proceeding with a claim

  • claimant can start a claim in the courts.
  • at the start of a claim, claimant will be required to complete an N1 form setting out all the particulars of their case.
  • an allocation questionnaire will need to be completed, depending on the amount being claimed and the complexity of the case.
  • a 'track' will be then allocated.
  • N1 forms include: name and address of both parties, brief details about reason for the claim, the amount of money being claimed.
• small claims track

  • less than £10,000
  • claim will be heard by a district judge, lawyers are not encouraged.
  • time allocated to a hearing is 2-3 hours
  • each party is allowed a limited number of witnesses.
• fast claims track

  • between £10,000 and £25,000
  • has a strict timetable set at a maximum of 30 weeks. if parties don't follow the timetable, the claim can be thrown out or judgement in default can be awarded.
  • hearing will be max of 1 day in open court with limited witnesses
  • usually heard by circuit judge.
  • each party can be represented by a lawyer.
• multi claims track

  • between £25,000 and £50,000
  • usually allocated to county court
  • heard before a circuit judge
  • case will be strictly case managed by circuit judge who sets strict timetable, the disclosure of relevant documents, number of witnesses and how long the case will last.
  • if case involved complicated points of law or evidence, or it involved more than £100,000 in value it can be passed to the High court.
• civil court appeals 1

  • appeal from county or high court to court of appeal
  • these appeals require leave from the lower court or the court of appeal.
  • permission to appeal will only be given where: court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.
• civil court appeals 2

  • appeal from court of appeal to supreme court. only allowed where the court of appeal or supreme court grants leave to appeal.
  • appeal from high court to supreme court. A 'leapfrog' appeal direct from high court, provided: all parties consent, point of law or general public importance is involved.
  • a certificate of the trial judge and leave from the supreme court is required.
  • appeal from the small claims court to county court. Can be made if there is a serious irregularity in the proceedings, or the District judge at the small claims court made a mistake of law.
• grounds to appeal

  • error of law - law wasn't applied correctly
  • error of fact - factual evidence incorrect
  • procedural unfairness - failure to disclose evidence, no legal representation for one of the parties.
• first appeal from 3 tracks

  • small claims - less than £10,000, first appeal will be heard by circuit judge sitting in county court.
  • fast track - if heard first by a district judge then will go to a circuit judge in the country court. if matter was complex and initially heard by circuit judge the appeal will be heard by high court judge in high court.
  • multi track - if originally heard in county court, will be heard in county court with more senior judge. further appeal to court of appeal (civil division) is allowed but only in exceptional cases.
• high court appeals

  • appeals should be made to the court of appeal
  • in exceptional circumstances, there may be a 'leapfrog' appeal direct to supreme court.
  • only permitted if appeal involves issues that are of national importance. leave to appeal required.
  • further appeal from court of appeal - only available if supreme court give permission.
• advantages of using civil courts

  • lawyers can give informed advice to their clients, at an early stage, of the likely outcome of the case. client can then asses the strength of case and whether it's worth pursuing.
  • reasoned judgments can be studied for accuracy and the law used by the judge to reach a decision. if there are inaccuracies, there is a clear, structured appeal route. appeals can also be made against the amount of compensation.
• advantages of using civil courts

  • court system provides open justice as the public and press are able to sit in and report most cases. this can stop individuals and businesses hiding disputes and outcomes that the public should be aware of.
  • in some types of claims, a form of funding may be available for the payment of lawyers fee's. such as in personal injury claims it may be possible to use a no-win, no-fee arrangement.
• advantages of civil courts

  • a judge will allocate a defended case at an early stage to the most suitable track and court. will be case managed through the process to a court hearing to minimize delays. both parties know in advance the number of witnesses allowed and length of hearing.
  • when giving decision on liability, judges will provide reasoned opinions so that parties can see how a decision is reached.
• advantages of civil courts

  • a legally binding and enforceable decision will be made by the judge. parties are guaranteed a resolution at the end of a hearing and an enforceable remedy is guaranteed.
  • case will be presided over by a qualified judge. they are qualified lawyers who can deal with complex legal matters. they will apply established rules of evidence and procedure to ensure the case is dealt with fairly and without being biased towards one party.
• disadvantages of civil courts

  • there can be delay in completing preliminary stages of a claim. once this is completed there can be a further delay with arranging a hearing date. some complicated cases can take years to solve.
  • there is an uncertainty of the outcome and no guarantee of winning a case until a judge makes a final ruling
• disadvantages of civil courts

  • very difficult for a claimant to take a case without assistance of a lawyer, this is due to requirements of pre-action protocols and formal nature of hearings. failure to observe these rules may result in the claim being dismissed.
  • using lawyers tends to lead to greater confrontation between parties. this can produce further delays and more costs.
• disadvantages of civil courts

  • claimant can only apply to their lawyer for a no win - no fee arrangement in personal injury claims. if lawyer decides there's a low chance of success, claimant must fund the claim from their own resources. in other cases they'll have to accept responsibility for their lawyers fees and hope they win the case and can cover the cost from the loser.
  • rule in civil cases is loser pays winners and their own costs. costs of taking a case to court can be more than the sum claimed.
• employment tribunals

  • specialist courts that operate alongside the court system and handle thousands of cases.
  • provides an alternative system of justice
  • was created by the industrial training act 1964 (key statute)
  • hears disputes between employees and employers where employee thinks they have been treated unlawfully.
• examples of employment tribunal cases

  • unfair dismissal - claimant says they were dismissed without good reason
  • discrimination - claimant claims he was discriminated against for a promotion because of sex, race, disability.
  • constructive dismissal - employee's work conditions were changed so drastically by employer that employee had no other option but to resign.
  • redundancy - claimant feels that they should not have been selected for redundancy or received less redundancy money than they should have.
• employment tribunals 2

  • used instead of going to court, cannot go to court as well unless they have exhausted the tribunal procedure.
  • individuals are encouraged to bring their own case without legal representation.
  • most tribunals have a legally qualified chairperson and two lay members, who are usually subject experts.
• employment tribunals 3

  • can make a claim to an employment tribunal withing 3 months of your employment ending or the problem happening
  • must have early conciliation to try and settle the dispute without going to tribunal. if early conciliation doesn't work ACAS will send an early conciliation certificate.
  • to bring a claim, must tell ACAS, make a claim to the tribunal but get legal help before you do that. (fill in online form)
  • don't pay for online claim, only pay for witnesses expenses or if you loose the costs of people claiming against.
• employment tribunals procedure

  • present case to the tribunal.
  • respondent will present their case against you.
  • then cross examination.
  • claimant will give evidence first, unless case is about unfair dismissal.
  • call witnesses to give evidence.
  • then will get a decision a few days or weeks after the hearing.
  • you can appeal if you think the employment tribunal made a legal mistake.
  • all appeals go to 'employment appeal tribunal'
• advantages of employment tribunals

  • claims will be heard by a specialist panel
  • ACAS will encourage the parties to settle the claim before a hearing
  • hearing will often be heard without public or press present. this ensures confidentiality for both parties.
  • hearings will often be informal and short - less than a day in length
  • the panel will give a written judgement after the hearing
  • each party will pay their own costs
  • there are limited appeal rights
• disadvantages of employment tribunals

  • a claim has to be issued quickly after the issue arises.
  • funding is not available. an employee may be at a disadvantage against an employer who can pay for legal representation
  • it's a more formal process than other forms of ADR - if settlement is not possible
  • appeals are limited to issues of law
  • there may be a delay in setting hearing dates
• Alternative Dispute Resolution (ADR)

  • not binding solutions
  • means resolving a dispute without having to go to court
  • use of ADR is encouraged by the Civil Procedure Rules
  • 4 main types of ADR: negotiation, mediation, conciliation, arbitration
• Negotiation

  • suits any type of case
  • can run alongside civil case in court
  • where two parties resolve their dispute without any third party assistance.
  • may be informal such as two individuals resolving a dispute face to face or formal such as asking qualified negotiators (sometimes solicitors) to act on behalf of the parties (negotiating a trade deal or company acquisitions and mergers)
• advantages of negotiation

  • it can be straightforward contact between the parties
  • low or no cost - no need for lawyers
  • the parties themselves are in control
  • relationships between the parties are preserved
  • continued business relationship
• disadvantages of negotiation

  • one of the parties may not be prepared to negotiate with the other.
  • one of the parties may be hostile towards the other.
  • either party may believe they are 'right' and not prepared to settle.
  • court proceedings may be the only way to resolve the dispute
• mediation

  • involves having a third party acting as a 'referee'
  • particularly popular in family cases following the Family Law Act 1996.
  • 'modern' methods included online mediation and the use of mediation centres.
  • mediator cannot suggest ways to compromise and the process depends on both sides embracing the process. the parties themselves must be encouraged to come to their own decision.
  • mediator shuttles between both parties to put forward points and opinions of the other side.
• mediation 2

  • private, neutral setting
  • third party is independent and unbiased, not and expert in legal cases, usually councillors
  • make appointment and time and date suited for parties
  • parties sit together and communicate issues and aim to reach compromise
  • if agreement is reached can make it legally binding if signed and enforced by courts but not always straight away
  • legal representation isn't required
• advantages of mediation

  • good alternative to lengthy and expensive court proceedings and will hopefully reduce the number of divorces dealt with by courts. Average cost per client of mediation is about £500 compared to £3,000 for going to court.
  • mediator is independent and will be agreed on by the parties
  • provides people with a quicker, cheaper and more harmonious way of dealing with disputes
  • the matter is dealt with in private and not in a public court
  • the process is flexible and can be adapted to suit both parties
• disadvantages of mediation

  • not compulsory to commit to the process after the initial assessment so people could end up spending more money by taking it to court.
  • successful mediation takes approx 3 to 5 days to resolve whereas court could be over in a day. can take place as often as parties like so it can be long and drawn out.
  • lots of mediators aren't always lawyers so there will be no legal expertise if a legal point arises.
  • many people take legal advice alongside mediation, so they end up saving very little.
  • result may not be binding on one or both of the parties
• conciliation

  • qualified professionals
  • same as mediation but involves third party taking a more active role in suggesting ways to come to a settlement. (can suggest alternatives and outcomes)
  • common in industrial disputes - ACAS is the biggest conciliatory body. (take trade union cases)
  • 'prevention rather than cure' approach
  • also used in access to services for the disabled
  • conciliation can also be used to prevent industrial strikes.
  • private, neutral setting
  • no need for legal representation