Civil courts and ADR

The jurisdiction of the civil courts of first instance
1. The County Court
  1. They have jurisdiction to hear:
    1. Contract ,Tort, Recovery of land to any value, Partnerships, Trust Inheritance (up to £30,000), Divorce Bankruptcy, Personal injury less that £50,000, Small claims, fast track and some multi track cases
2. The High Court (3 divisions)
  1. Queens bench division
    1. They have jurisdiction to hear: Cases involving contract and tort cases over £50,000 and some complex multi track cases, they also hear judicial review.
  2. Family Division
    1. They have jurisdiction to hear: cases under the Children Act 1989 and other family matters.
  3. Chancery division
    1. They have jurisdiction to hear: matters of insolvency, mortgages, trusts, property disputes, copyright and patents.
3. How a case is taken to court
  1. 1.Complete and submit a N1 Claim form naming the defendant and stating the particulars of the claim, including the amount of damages being sought.
    1. 2.The court will send the N1 Claim form to the defendant and they are given the opportunity to admit the claim and pay the amount claimed or defend the claim.
      1. 3.If the defendant chooses to defend the claim, the court will send an allocation questionnaire to both parties.
        4.When the claimant returns this questionnaire a fee must be paid. The fee depends on the amount being claimed.
        5.Some claims can be made online using the Ministry of Justice's 'Money Claim Online' website. However you can only use this if your claim is a fixed amount of less that £100,000
4. The Track System
  1. Small Claims Track
    1. Hears contract and tort cases up to £50,000 and personal injury cases up to £1,000
      1. Strict time limit for questioning witnesses.
        Heard by District Judge in the County Court
        Informal and use of lawyers is discouraged
  2. Fast Track
    1. Hears claims from £5,000-£25,000
      1. Cases heard within 30 weeks
        Trial should last one day and have a limited number of witnesses,
        Heard by District judge in the County Court
  3. Multi-Track
    1. Hears claims over £25,000 or cases involving complex points
      1. Heard by a Circuit judge in the County Court but can be sent to the High Court.
        Par ties may be encouraged to try one of the ADR methods
        Judges will case manage and use strict timetables for things like the disclosure of documents.
5. The Appellate Courts
  1. The Divisional Courts of the High Court
    1. All three divisions hear appeals from other courts as well as first instance cases.
      1. Queens Bench divisions have two appellate functions:
        To preside over applications for judicial review which are proceeding in which a judge reviews the lawfulness of a decision or action made by a public body
        To hear appeals stated from criminal matters decided in the Magistrates Court
  2. Court of Appeal (Civil Division)
    1. Headed by the Master of the Rolls and hears appeals from:
      1. Divisions of the High Court
      2. Some County Court multi track cases
      3. Certain Tribunals
    2. In order to bring an appeal to this court permission is needed and this can be granted by the court below or by the Court of Appeal itself.
  3. Supreme Court
    1. It is the final court of appeal and hears cases of public importance. It hears cases from:
      1. Courts of Appeal
      2. Divisional Courts
      3. High Court under the 'leap frog' provision
    2. In order to bring an appeal to this court 'permission' must be granted and this can be granted by the Supreme Court itself or the lower courts
6. Civil courts assessment (Woolf Reform 1999)
  1. Introduction of the Woolf Reform 1999 some of the effects from the reform are as follows:
    1. There is now more co-operation between parties and case management has been a success and there is a high rate of settlement before the hearing, 80% in some areas.
      1. Rules on disclosure and time restrictions in fast-track cases causes limitations on expert witnesses. It ensures cases are dealt with quickly
        Early settlement is actively encouraged by the use of pre-action protocols and the encouragement of the use of ADR.
        Allocation questionnaires and case management conferences ensure that parties know how the case is to be managed and the number of witnesses allowed. although these are complex and time consuming.
        There are mixed reviews whether or not the time delay between issuing a claim and hearing has been reduced in comparison to ADR.
        Costs have increased overall due to the front loading of costs for the fast-track and the multi-track, there is also a lack of legal funding for small claims and limitations for other cases.
        Court remains very formal which some individuals may find intimidating
        Courts are still under resourced with IT systems being regarded as primitive in comparison to private practices.
ADR
1. Mediation
  1. Mediation is a voluntary process where an impartial/neutral third party will assist the parities in coming to a compromise solution. The parties will control the process. with the mediator playing a passive role and acting as a facilitator, allowing parties to reach their own agreement. Mediator will be in charge but will not influence the outcome.It is not binding unless formally recorded and the process can be terminated by any party at any stage.
2. Conciliation
  1. Conciliation is very similar to mediation as it is voluntary and both parties must agree to submit their matters to the conciliation process. the conciliator has no power to impose their own solution but they will play a more active role in by suggesting grounds for compromise and possible ways to resolving the issues which mediators cannot do. The final agreement is no binding unless made so by a signed agreement.
3. Arbitration
  1. Arbitration is the most formal method of ADR whereby both parties will voluntarily agree to allow their dispute to be left to the judgement of an independent arbitrator, the time and place of the hearing, the procedure for the hearing- this can be a paper arbitration or a formal court hearing, it will be legally binding by the arbitrators decision
4. Advantages and disadvantages of Mediation and Conciliation.
  1. Voluntary process, encourage co-operation and avoids the adversarial system.
  2. Both can be cheap and quick
  3. Less formal than court proceedings and does not follow the strict letter of law.
  4. Maintains working relationships and can include decisions about future dealings.
  5. Both parties maintain a sense of control and can choose the method of mediation,
  6. Agreements are more likely to last as they are a compromise and everyone wins
  7. Private and no media exposure
  8. Mediation and arbitration organisations have experts to assist
  9. No guarantee that the dispute will be resolved
  10. Will not work unless both parties are willing to co-operate and reach a compromise
  11. Settlements are often considerably lower than those awarded by the courts
  12. Agreements can not be enforced, so there is no pressure to stick to it.
  13. Could go on for a long time without a settlement
  14. Unless the mediator has the necessary qualities, mediation can turn into bullying exercise and weaker parties may not stand up for their own rights
5. Advantages and Disadvantages or Arbitration
  1. The parties can choose their arbitrator and appoint a technical expert if appropriate
  2. Use of an expert to decide avoids having to use expert witnesses.
  3. Flexibility- the time and place of the hearing can be decided by the parties to suit their needs and is held in private.
  4. Likely to be dealt with quicker and cheaper than the courts
  5. Award is final and can be enforced by the courts
  6. Avoidance of bad feeling between the parties
  7. Confidentiality
  8. Unexpected legal points may crop up which the arbitrator may not be able to fully take into account
  9. When dealing with technical points, arbitration may become highly complex
  10. Commercial arbitration can take as long as the courts to complete
  11. Professional arbitrators may be very expensive
  12. The lack of availability of legal funding may disadvantage an individual
  13. Rights of appeal are more limited than the courts

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Civil courts and ADR

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