law revision on civil cases

what is a civil claim?

when individuals/businesses believe that their rights have been infringed in some way

e.g contract law, law of tort, family law, employment law and company law

courts cases are regarded as what?

as a last resort, therefore they try to settle some sort of negotiation

how can cases be resolved?

by a desired action such as refund money, change goods, pay the debt

if one party doesn't want to settle the claim what will they do?

seek legal advice(solicitor)

if other party doesn't agree on compensation what must they do?

decide whether the matter is worth pursuing further

what does this involve?

starting a court case or methods of ADR

what is a bargaining situation?

series of letters between parties to make a compromise

what are the disadvantages of going court?

very expsensive even if you do it yourself without a lawyer

if you lose you have to pay the costs of the other side

if you win other party may not have enough money to pay claims and costs

complicated cases take years and cost hudreds and thousands of pounds

why are parties encouraged to give information to each other?

to stop case going to court

what is meant by protocol?

a made-procedure both parties have to follow

if they don't follow the procedure what will happen?

they will be liable for certain costs if they make a court claim

what does the letter include?

details of claim, why other party is at fault, damages and injuries

how long has defendant got to investigate the claim?

3 months, stating whether liability is admitted or denied and reasons for denial

what one thing do parties need to agree on?

one expert if evidence is needed

many claims can be settled, but some need to go to court

which court do you use for what?

county court- claim of £15,000 or less, or personal injury claim less than £50,000

high court- claims greater than £15,000, defamtion actions must be started in high court

if claim over £15,000 can choose which court to use

cases can be transferred from one court to another for acutal trialif necessary

points considered- amount of claim and whether case will raise an issue of law

which courts can you choosr from?

when using a county court u can choose any of the 230 county courts in the country

if using high court you can choose one of the 20 district registries or main court in london

what can the courts help you fill out?

the form-3 copies, one for yourself, one for the court and one for the defendant

where is the form taken?

court office- court fee has to be paid for issuing the claim

what do the claim amounts vary on?

£300 claim- £30 fee£5000 claim- £120 fee £5000&£15,000 claim- £230 fee

over £150,000 claim -£800 fee

what happens when defendant recieves the claim form and admits the claim?

pays full amount, the case ends and the claimant has achieved what was wanted

what does defendant do if they wish to defend claim?

send a defence to the court within 14 days or send an ackknowledgment of service where they have an extra 14 days to defend themselves

what happens if the defendant doesn't no any of these? claimant ask courts for defendant to pay costs claimed and court passes an order in default.

what happens when the claim is defended?

court will allocate the case to the most suitable track or way of dealing with the case

which track should be used is decided by who? district judge in the county court or the master in the high court

which track is what? small claims track- disputes under £5000 except in personal injury and housing cases were the max is £1000

fast track- straightforward disputes of £5000-£15 000

multi-track - complex cases over £15 000

what is done to help judge consider which track should be allocated?

both parties are sent an allocation questionnaire

judge can allocate a case track which what?

usually deals with claims of higher value

if parties agree judge can what?

allocate case to a lower-value track

which value of claim will be tried in which court?

claim of under £5000- countycourt,small-claims procedure

£5000- £15000- county court, fast track procedure

£15 000-£25 000- county court multi track procedure

£25 000- £50 000- high court/county court mutli-track procedure

over £50 000- high court multi track procedure

what is are theadvantages of small claims?

low cost in taking proceedings i.e forclaims under £1000

losing party doesn't have to pay costs of other party's lawyer

people can take case themselves- don't have to use a lawyer

procedure is quicker than other cases

district judges help parties to explain case

in the small claims procedure what are peolple encouraged to do?

take their own case so that cost is kept low

small claims have to be started the same way as other cases, why is this an disadvantage for the person?

makes it difficult for them

why is the use of having a lawyer at a small claims hearing discouraged?

because even if youdowinning party cannot claim costs of using a laywer on losing side

why is the use of having a lawyer at a small claims hearing discouraged?

because even if youdowinning party cannot claim costs of using a laywer on losing side

what can you use?

lay representative ( non-legally qualified person) help to put your case

where is a small claim heard?

heard in an ordinary court, district judge has flexiblity to the way he hears the case, but process is more formal as compared to previous system

what are district judges encouraged to be?

inquisitorial

and whyare theygiven training to handle small claims cases?

so that they take an active part in proceedings, ask questions and make sure that both parties have explained all their important points

what are the disadvantages of small claims?

cases over £1000 allocation fee has to be paid

legal funding for paying a lawyer isn't available, though it can be possible to fund case through 'no win no fee'

where other side is a business they'l use a lawyer- puts an unpresented claimant at disadvantage

district judges are not always very helpful to unpresented claimants

winning part doesn't always get money from defendant- only 60% of successful claimants recieve money awarded by the court

what are the main types of civil cases the county court tries?

contract and tort claims, recovery of land cases, dispute over partnership, trusts and inheritance upto £30 000

divorce cases, bankruptcy, admiralty cases (normal limit £5000 or £15 000 for salvage cases) & matters under the race relation act 1976

small claims, fast track and mutli track cases, work load much greater than hight court

how are cases heard in county courts?

in an open court and members of public are entitled to attend

except when?

family matters, maintenance hearings and proceedings under children act- heard in private

who are formal hearings, claimants &defendants represented by?

solicitor or barrister

in the county court what can winning party claim ?

claim costs including legal cost representation

cases are more exspensive than what?

in small claims track

how are the cases viewed in the county court?

as inappropraite& disproportionately exspensive way of resolving thier dispute

what judges are the cases heard by?

circuit judges rare cases jury of 8 sit with judge

claims between £5 000-£15 000 need what? a faster cheaper method of dealing with them

before woolf reforms what was it like? along process and as well as that they were exspensive

what happens once the case is defended?

district judges send an allocation questionnaire for decision whether case is suitable for fast track

personal injury and hosuing cases over what are dealt as fast track cases? over £1000 up to a max of £15 000

what does a fast track case mean?

courts set a strict timetable for pre trial matters- prevent parties from wasting time and running up on unnecessary costs

what is the aim once a case is set down for hearing?case is to be within 30 weeks

who is the case heard by and where does it take place? by a circuit judge and takes place in an open court

in order to speed up case what have they done? limit hearing to 1 day max, number of expert witnesses restricted, with only 1 expert allowed

what do claims have to be over to be allocated to the multi track case? £15 000

where do the start? in county court, can be tried there or sent to high court

who is the case heard by?

circuit judge and is expected to manage the case from the moment it is allocated as multi-track case

what can the judge set?

timetables, parties can be asked to opt for ADR to prevent waste of costs

where is the high court based?

in london, but has 26 judges sitting in different throughout england and wales

what cases does it hear and what are its divisions?

hears any civil cases and has 3 divisions:

queens bench

chancery

family

who is the president of the queens bench division and how many judges sitting in the division? lord chief justice is the president and there are nearly70 judges

what type of cases does it deal with? contract and tort cases where amount claimed is over £50000- claimant can start claims at £15 000

what is the intention of the high court? that it should only deal with multi-track cases- certain types of actions are more suitable than in county court

who are the cases tried by? tried by single judges- there's a right for a jury trial for fraud, libel, slander, malicious prosecution and false imprisonment cases

why are cases in this court exspensive? lawyers, court fees, issue claim fees& hourly trial fees

what is the average time between claim issue and trials? 3 years

what types of judges does the commercial court hold?specialist judges dealing with insurance, banking and other commercial matters

example problems of the Lloyd's 'names' for the losses caused by large insurance claims

what procedure is used? simplified &speedier procedureused,case is decided on document evidence

what does the admirality court claim with? shipping and damage claims for collisions at sea, disputes over salvage rights when ship has sunk or stranded

who does the judge sit with? 2 lay assessors, chosen from master of trinity house who advise questions on seamanship and navigation

what does the technology and construction court deal with?

deals with cases from chancery and queens bench div, involving technically complex issues- building/engineering disputes or litigations over computers

queens bench division has supervisory functions over what?

inferior courts and other bodies with decision-making powers, such as govt ministers/ or local councils

what is the judicial review concerned with?

whether a decision-making process has been done legally, as distinct from merits of the decision in question

who is the head of chancery division and who is head fro practical purposes? lord chancellor technically head and vice chancellor is head for practical purposes

how many judgesis there assisting in division? 17 high court judges

what does the main business for this division involve?

insolvency matters both companies and individuals, enforcement of mortgages, turst property, copyright&patents, intellectual property matters & contested probate actions

what does special companies court deal with?

winding up companies

what is used for the trials?

only single judges, never juries

who is the head of this division and how many judges assisted in this division?

president is head, and 17 high court judges are assisted

what types ofcases are dealt with?

wardship cases and cases relating to children under children act 1989

declarations of nullity of marriages and grants probate in non-contentious probate cases

who are the cases heard by?

single judge, no jury trial

what didlord woolf state that the civil justice system should be?

just in the results it delivers

be fair in the way it treats litigants

offer appropriate procedures at reasonable cost

deal with cases at reasonable speed

be understandable to those who use it

provide as mauch certainity as nature of particualr cases allow

be effective adequately resourced and organised

what were the most important recommendations?

extending small claims up to £3000

straightforward fast track cases upto £10 000

multi-track cases over £10 000 with capping of costs

encourage ADR and more use of it

give judges more responsibilty to manage cases

shorter timetables for cases to reach court & for shorter lengths of trials

simplify docs and procedures to have a single set of rules applying on both high court and county court

what has changed in the civil procedure rules?

simpler language, vocabulary changed, from plaintiff to claimant, start cases in claim form rather than writ/summons

overriding objective is to enable the court to deal with cases justly, this means that the court should try to?

ensure that the parties in cases are on an equal footing

save exspense

deal with cases so that the amount involved in court fees is not more than amount claimed, importance of case is major point of law involved, complexity of case

case is dealt with quickly and effectively

allocate an appropriate share of courts' resources ( so smaller cases don't take up more time than they justify

how do judges have more control over proceedings than before?can set timetables and make sure that parties don't drag out a case unnecessarily

what does the active case management by judges include? identify issues at early stage

decide which issues requires investigation and trial

encourage parties to use ADR (where appropriate)

deal with procedural steps without the need forparties to attend court

give directions to ensure that the trial case proceeds quickly and efficiently

how are the rules applied in court?

case management- issues identified more quickly in cases- cases are settled without need for trial

judges staying in cases so mediation can be tried

judges applying timetables strictly

example

vinosV M&Splc, solicitors issued claim within time limit and told defendant's insurers they had done so. However they were 9 days late in serving claim on defendant

claim struck out by court because of this

what were the factors in effect after woolf reforms?

withdrawal of legal aid from certain claim types i.e personal injury cases

widening scope of conditional fee agreement together with ability to recover success fees insurance premiums

introduction of tougher standards and controls by law society and legal services commission

implementation of human rights act 1998-2000

what were the positive effects of the factors after woolf reforms?

total volume of litigation has fallen since april 1999

the number of fast track trials in particular, has dropped sharply in many courts

the rate settlement of cases has increased

what are the problems of the woolf reform factors?

time taken for theses cases to get to trial has improved little

new civil procedure rules are very lengthy & too many amendments have been issued

small claim listings suffered as priority has been set to fast track and multi track conferences and trials

increase in court fees and problems in the enforcement of judgements may have reduced the small claims cases

there are claims that case management 'takes extra time and cost, but adds little value'

county courts are under-resourced. this delays issuing, allocation, listing and production of court orders

what is the main remedy awarded by the courts?

an order that an amount of money be paid to the claimant- award of damages

what award is given in casee of breach of contract?claimant put in the same position as he would have been if the contract hadn't been broken-monetary compensation can't compensate for losses caused

what is special damages the term for? damages that can be calculated specifically i.e tort of negligence following a car crash- it is possible to set out exactly the cost of repairing the car

or loss of earnings due to injuries

what are general damages?

matters which can't be neatly itemised

what will this involve in personal injury cases?

amount for pain,suffering,future loss of earnings,cost of nursing,necessary assistcance&accomodation for disabled

most victims are satisfied why are all victims not satisfied with lump sum awarded?

as there is reality of long term ill effects and reduced work capacity, delay of recieving compensation-some have to borrow money or run debts while waiting for compensation

what are nominal damages?where claimant has won the case but couldn't show there has been actual loss,

court award small amount of money in recognition that the claimant's rights have been infringed-usually happens in actions of tort

example

claimant may establish that defendant has walked across claimant's feild without permission/lawful excuse nominal damages can be awarded-

gate broken while doing so, specific damages are awarded to repair the gate

what are exemplary damages?

punitive damages, punish defendant not merely compensate claimant

when are they only awarded?

only in tort cases, when authorised by stature,

there has been oppressive, arbitrary or unconstitutional actions by servants of the govt

where defendant made profit from tort which would be greater than any compensation due from that tort

not available for breach of contracts

what are equitable remedies?

remedies developed by equity not given automatically,

courts have discretion to decide whether this should be granted or not

what are the major equitable remedies ?

injunction, specific performance, rescission and rectification

what is a temporary injunction also known as and what isit for? also known as interlocutory injunction and preserves status quo between parties while awaiting trial

final injunction granted where damages would not be an adequate remedy

when can it be used? can be used in contract law to stop a threatened breach of contract,

in tort law- prevent continuation of nuisance/ restrain on going trespass,

family law- control domestic violence,

administrative law- prevent public authorities from acting unlawfully

what is breach of an injunction?

contempt of court, extreme cases person can be sent to prison

what is special performance?

remedy only used in contract law and should be carried out as agreed

when is it granted?

where court feels common law remedy of damages can't adequately compensate claimant eg purchase of land

not granted for personal services such as singing at a concert, not granted for breach of contract where one party is minor

when is rescission only available?

contract cases only

what is the aim of the courts in awarding resicission?

return the parties as far as possible to their pre-contractual position

what are the main grounds for rescission?

misrepresentation which has induced one party to enter into a contract or a mistake which has fundamental effect on a contract

what is rectification?

court order that a document should be altered to reflect parties' intention.

when is it granted?

when mistake was made in drawing up document, so that it is not a true version of what parties agreed