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Terminology in the Civil Courts
Claimant - This is the individual or business which is bringing the claim
Defendant - This is the individual or business which is defending the claim
What is a civil case?
Civil court cases arise where an individual or a business believe their rights have been infringed in some way.
Different types of civil claims include;
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A business may claim that they are owed money - contract law
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An individual may wish to claim compensation for injuries suffered in a road traffic accident - the tort of negligence
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The owner of a house may wish to prevent another person walking on their land and seek an injunction - the tort of trespass to land
This is not a complete list of civil cases; in fact there are hundreds of different types of claims which may be brought in the civil courts.
The first step in a civil action
Taking someone to court is usually the last option in a civil dispute. Usually businesses and individuals try to resolve their problem through negotiation. For example, if you buy a faulty DVD from the shop you would take the DVD back and usually they will replace it. In other situations you may write to the other side to complain, the majority of civil disputes are resolved at this stage and there is no need for a court hearing. This will often lead to a compromise being reached and once again there is no need for a court hearing.
Advice from a solicitor
If the other side in a dispute will not settle the claim through negotiation then the aggrieved person must decide if they wish to take the case any further. The usual next stage is to consult a solicitor, they will then write to the other side on your behalf. However when the other side will not negotiate or compromise you may need to start a civil claim. The first thing to check before taking someone to court is do they have the money to pay you should you win the case? If they don't then you may be wasting your time and money!
Taking a Civil Case to Court
Going to court means expense! There will be a court fee, solicitor's costs and of course there is no guarantee that you will win the case.
The civil justice system was reformed in 1999 following the Woolf Report, Access to Justice (1996). These reforms attempt to simplify the procedures and terminology and speed the process up. Parties to a civil case are now encouraged to follow a pre-action protocol, this is a list of things to be done, and information which should be given to the other side before court proccedings are started. If the pre-action protocol is not followed then the party at fault may be liable for certain costs when the case comes before the court.
To see the main features of the civil justice reforms introduced following the Woolf Report see Asif Tufal's site (A-Level-Law .com) by clicking here
For further information about pre-action protocols see the Ministry of Justice website here and for futher details of the Civil Procedure Rules and Practice Directions click here
Which Court Should You Start Your Civil Claim In?
There are two Courts of First Instance which hear civil claims;
For cases where the claim is for £15,000 or less the case must be started in the County Court. For larger claims you can usually choose which court you start your claim in.
However, the High Court and County Courts Jurisdiction Order 1991 lays down some restrictions as follows;
Cases can be transferred from one court to the other for the actual trial.
How to issue a claim
You need to complete a claim form, called a N1, the High Court or County Court office will give you a booklet explaining how to fill it in.
The various court forms, including the N1 can be seen on the Court Services website by clicking here. The site also contains guidance on starting cases in the civil courts.
Defending a claim
When a defendant receives the claim court from the court they may do one of the following things;
If the defendant does nothing then the claimant can ask the court to make an order that the defendant pays the claim in full and the costs, this is known as an order in default.
If a case is defended then the court will allocate the case to the most suitable track.
Allocation of Cases
The decison on which track should be used is made by the District Judge in the County Court or the Master in the High Court.
The Small Claims Track
This is normally used for disputes under £5,000, apart from cases involving personal injuries or housing where the limit is £1,000
The Fast Track
This is used for straightforward disputes between £5,000 and £15,000
The Multi-Track
This is for cases over £15,000 or for complex cases of any amount
To help the court decide which track a case should be allocated to both parties to a civil dispute are sent an allocation questionnaire.
The Small Claims Track
This is a fairly cheap and informal way of settling small disputes.
The procedure in the small claims track
People are encouraged to bring their own case so that costs are kept to a minimum. It is possible to use a solicitor in the small claims track, however, the winner cannot claim the cost of their solicitor from the losing side. Judges in small claim cases play an active role in the proceedings, asking questions and ensuring that both parties explain all their important points.
Advantages of the Small Claims Track
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The cost of bringing a case is low, especially for claims under £1,000
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If you lose you will not have to pay for the other side's solicitor
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People can bring the case themselves and do not need to use a solicitor
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The procedure is quick
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The District Judge helps the parties explain their case
Disadvantages of the Small Claims Track
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For cases over £1,000 an allocation fee has to be paid
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Legal funding for a solicitor is not available
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Where the other side is a business they are more likely to use a solicitor, this puts an individual representing themselves at a disadvantage
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Research shows that District Judges are not always helpful to unrepresented parties
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Even if you win your case it doesn't mean the other side will pay you. Only about 60% of successful claimants actually receive all the money awarded by the court.
The Fast Track
This track is used for claims between £5,000 and £15,000, personal injury and housing cases from £1,000 - £15,000 are also dealt with as fast track cases.
For fast track cases the court will set down a very strict timetable for pre-trial matters. The aim of this is to prevent either party from wasting time and adding unnecessary costs. Once a case is set down for a hearing the court aims to deal with the case within 30 weeks.
A fast track trial will usually be heard by a circuit judge and will follow a more formal procedure than the small claims track. In an attempt to speed up the trial the hearing will be limited to a maximum of one day, with usually only one expert witness being allowed.
The Multi-Track
Claims for more than £15,000 are usually allocated to the multi-track. If the case was started in the County Court then it is likely to be tried there, however it can be sent to the High Court. The case will be heard by a circuit judge who will also be expected to manage the case from the moment it is allocated to the multi-track.
More on the Civil Courts
The County Court
Most major towns have a County Court. The usual types of cases they hear are;
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Contact and tort claims
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Cases for recovery of land
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Disputes over partnerships, trusts and inheritance up to £30,000
Some County Courts also have jurisdiction to hear divorce cases. The County Court can hear small claims track, fast track and multi-track cases and in 2003 approximately one and a half million cases were started in the County Courts. Most cases however do not proceed to trial and in 2005 only 17,318 cases were heard in the County Courts, with a further 47,521 cases being heard in the small claims procedure.
Cases are heard in open court and members of the public are allowed to attend, apart from cases involving family matters, i.e. proceedings under the Children Act 1989.
The High Court
The High Court consists of three divisions;
Queens Bench Division, Chancery Division & the Family Division
The Queens Bench Division deals with contract and tort (civil wrongs) cases which are worth more than £50,000. Although cases over £15,000 can be started in the Queens Bench Division, the intention is that only multi-track cases should be dealt with in the QBD.
Usually a case is tried by a single judge but there is a right to jury trial for fraud, defamation, malicious prosecution and false imprisonment cases.
Within the Queens Bench Division there are also specialist courts;
Commercial Court
This is part of the Queens Bench Division and it deals with insurance, banking and other commercial matters.
Admiralty Court
Also part of the Queen's Bench Division and it deals with shipping cases and deals with such matters as claims for damage caused by collision at sea. The Admiralty Court also deals with salvage rights when a ship has sunk or been stranded.
The cases dealt with by the Chancery Division are those involving insolvency, for both businesses and individuals, and the enforcement of mortgages, disputes relating to trust property and copyright matters. This Division also deals with contested probate matters. Cases are heard by a single judge and juries are never used in this division.
The Family Division hears cases involved with wardship and any matter relating to children under the Children Act 1989. It also deals with such things as nullity of marriage and grants probate in non-contentious probate cases. Cases are heard by a single judge and juries are never used in this Division.
Civil Appeals
Appellate Courts are courts which hear appeals. The main appellate courts in the civil justice system are the Divisional Courts (High Court), Court of Appeal (Civil Division) and the House of Lords.
The Divisional Courts
Each division of the High Court has a Divisional Court which has the jurisdiction (power) to hear appeals from inferior courts and tribunals. Usually two or three judges sit to hear an appeal.
Queens Bench Divisional Court
The appeals this court hears are;
Chancery Divisional Court
This deals with appeals from decisions made by Tax Commissioners and appeals from decisions of the County Court in bankruptcy cases.
Family Divisional Court
Hears appeals from the decisions of the Magistrates' Court regarding family matters and orders affecting children.
The Court of Appeal (Civil Division)
Hears appeals from the following courts;
Permission to appeal to the Court of Appeal
Permission to appeal is required in the majority of cases, known as leave to appeal. It can be granted by the lower court who heard the original case or by the Court of Appeal.
House of Lords
This is the final court of appeal in the English legal system. It hears appeals from the Court of Appeal and the Divisional Courts. It also occasionally hears appeals direct from the High Court under what is called the 'leapfrog' procedure. Appeals are usually heard by a panel of five Lords of Appeal in Ordinary (Law Lords).
Permission to appeal to the House of Lords
If an appeal is from the Court of Appeal or the Divisional Courts it is necessary to gain permission to appeal to the House of Lords. This permission can be given by the lower court who heard the case or the House of Lords itself.
Where an appeal to the House of Lords is made under the leapfrog procedure not only must the Lords give leave to appeal but the trial judge must also grant a certificate of satisfaction. A certificate of satisfaction will be granted only if the case involves a point of law of general public importance which either involves the interpretation of a statute or is a point of law where the trial judge is bound by a previous decision of the Court of Appeal or the House of Lords. There are only about two or three appeals via the leapfrog procedure each year.
For further explanations of the appeal routes in civil cases see the Bournemouth and Poole Sixth Form College website, click here
Remedies in Civil Cases
Damages
Damages are an order from the court that an amount of money must be paid to the claimant. This is called an award of damages. There are different types of damages awarded by the civil courts;
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Special Damages This is the name for damages which can be calculated specifically. For example in a negligence action after a road traffic accident it is possible to calculate the exact cost of repairing the car, the cost of a hire car, the cost of damaged clothes and any loss of earnings.
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General Damages These are for things which can't be easily calculated. This may include an amount for pain and suffering and also for loss of future earnings.
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Nominal Damages Where the claimant wins the case but is unable to show that there has been any actual loss, it is possible for the court to award a small amount of damages (money) in recognition that the claimant's rights were infringed.
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Exemplary Damages Another name given to this type of damages is punitive damages, these are damages which are intended to punish the defendant and not merely to compensate the claimant. Exemplary damages are only awarded in tort cases in the following situations; where they are allowed by an Act of Parliament, where there has been oppressive, arbitrary or unconstitutional action by employees of the Government, and where the defendant intended to make a profit from the tort which would be greater than any compensation due from carrying out the tort.
Equitable Remedies
The word equity means fairness. Equitable remedies are awarded at the discretion of the court and are not automatic, i.e. the claimant does not have a right to an equitable remedy. The main equitable remedies are;
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Injunctions
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Specific Performance
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Rescission
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Rectification
Injunctions
An injunction may be awarded by the judge where damages would not be an appropriate remedy. It is an order by the court to stop doing something. An example of where an injunction would be appropriate would be to prevent the continuation of a nuisance or stop an ongoing trespass. Breach of an injunction is a contempt of court and in extreme cases a person who breaches an injunction may be sent to prison.
Specific Performance
This remedy is only used in contract law. It is an order of the court to do something. This is usually that a contract should be carried out as agreed. An example of where specific performance would be appropriate would be a contract to buy land.
Rescission
This is also only available in contract cases. The aim of the court when awarding rescission is to return the parties to the dispute as far as possible to their pre-contractual position. The main grounds for rescission are a misrepresentation which has induced (encouraged) one party to enter into a contract, or a mistake which has a fundamental effect on the contract.
Rectification
This is an order from the court that a document should be altered to reflect the parties' true intentions. The court will only grant this remedy where is it satisfied that a mistake was made in drawing up the document so that it is no longer a true version of what the parties originally agreed.
Examination Question on the Civil Courts & Suggested Answer
Discuss the advantages and disadvantages of the current system of dealing with civil cases in the courts. June 2005 (20 marks)
Suggested Answer Content
Assessment Objective 2
Assessment objective 2 is looking for the ability to analyse issues central to the question showing some understanding of current debate and proposals for reform or the ability to identify most of the relevant points of law in issue. The examiner is also looking for the ability to develop clear arguments or apply points of law clearly to a given factual situation and reach a sensible and informed conclusion.
Suggested content
General
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Demonstrate knowledge of the relevant legislation creating the current civil court system
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Show knowledge and understanding of the track system and how cases are allocated
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Understanding of the importance of Alternative Dispute Resolution (ADR) in the current civil court system
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Knowledge of time limits for court cases & case management by judges
Advantages of the System
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More co-operation between the parties than in the past
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More use of ADR to settle disputes
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Earlier settlements of disputes resulting in less court trials
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Costs kept down by case management
Disadvantages of the system
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Heavily front loaded system in terms of cost and work
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New procedures such as the pre-action protocol, allocation questionnaires and case management conferences are more complex than previously was the case
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Rules on time limits are too strictly enforced
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Adversarial procedures are still used in court trials
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Delay is still a problem, although it has improved with the reforms
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Court proceedings are still too formal
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Lack of legal funding for small claims track cases and very restricted for other civil claims
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