THE CIVIL COURTS AND OTHER FORMS OF ADR

Civil Courts and Appeal Stucture
1. Courts of First Instance: Claim will be issued in either the county court or the high court (courts of first instance) if someone disagrees with the decision of a court of first instance they can apply for appeal and go to a higher court who will reconsider.
  1. Magistrates Court: Has jurisdiction over family matters and can deal with the recovery of unpaid council tax and utility bills, which is actually a crime not to pay.
    1. County court: over 200 county courts in UK. Jurisdiction: civil disputes; contract, tort, bankruptcy, property, and divorce.
      1. There are three tracks: small claims (cases involving less than £5000)- District Judge
      2. Fast track (cases involving between £5000 and £25,000)- Circuit Judge
      3. Multi-track (cases involving more than £25,000)- District Judge
      4. High Court: There are three main divisions, and each division has it's own court of first instance and appeal court to hear cases from lower courts.
        Queen's Bench Division: Daals mainly with contract and Tort cases, 74 judges, can hear multi-track cases, can even hear cases with a jury
        Family Division: Family issues (never would have guessed!)
        Chancery division: company and Land Law matters, 17 judges
        Appeal Courts: Access to Justice Act 1999, means that a party may only appeal with the permission of the court that the case was heard in or the appeal court.
        Appeal courts
        High court: same three divisions as earlier, except all dealing with appeals on said matters.
        Court of Appeal (civil): 37 judges, Hears appeals from: County Court, High Court, Employment Appeal Tribunal. Cases hear in the CoA are not a re-trial of the original case, only hear cases on points of law, and require the permission of the original court.
        Supreme Court: Created by the Constitutional Reform Act 2005, 12 Justices of the Supreme Court, msut obtain permission to take a case to the Supreme Court. Most appeals come from CoA, It's possible to use the Administration of Justice Act 1969 to skip CoA and go to Supreme Court. Same as CoA, only hears cases on points of law and not re-trials, and when the pervious judge was bound by judicial precedent
Alternative Dispute Resolution (ADR)
1. Reasons for ADR, civil courts are:
  1. Slow
  2. Expensive
  3. Have tight set of procedures which must be followed
2. Arbitration
  1. The Arbitrator: Charted institute of Arbitrators, used to select. Independent and expert in field concerned,
  2. The process: both parties agree to arbitration in writing, (Scott v Avery clause, compels arbitration, court will refuse to hear xase if contract contains clause and arbitration has not been conducted), Arbitrator organises time, date and place of hearing, witnesses may be heard, when the Arbitrator makes an award (decision) it is binding and can be enforced through the courts. Arbitrators discourage legal representation to keep costs down.
  3. Appeal?
    1. There is no automatic right to appeal, however appeals can be made to the High Court, if there has been:
      1. a 'Serious irregularity'- s68 Arbitration Act 1996
      2. Or, an issue with a point of law- 69 Arbitration Act 1996
3. Mediation
  1. The Mediator:There is a 3rd party known as the mediator, acts as a messenger so parties never even have to meet. Mediator's role is to refine issues between parties and find common ground, howeve is parties' role to come to resolution.
  2. Process: conducted in private, parties are separate, mediator used for parties' communication to negotiate a settlement, Mediator is impartial, doesn't suggest grounds or force a solution. No Legal representation to reduce costs, when an agreement is reached it will be written down and become legally binding.
  3. Examples: -Divorcing couples (Family Law Act 1996), -Neighbour disputes (West Kent Independent Mediation Services)
4. Conciliation
  1. Concilator: similar to mediator, except takes a more active role in the process, they can: suggest terms and comments on them for both sides. Role of Conciliator to organise time and placwe of meeting convenient for everyone
  2. Types of dispute, Employment disputes (through ACAS)
  3. Process runs the same as mediation except the conciliator's additional intervention
5. Negotiation:
  1. Normally happens without any formal intervention, even in court claims, parites can still negotiate and even come to a settlement on the day on the day of the trial.
  2. All types of disputes
  3. It is often difficult to negotiate without lawyers because people tend not to focus on the issue, however, lawyers are expensive so drive costs up.

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THE CIVIL COURTS AND OTHER FORMS OF ADR

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