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The civil justice system Pages 2-8

The civil justice system Since 1998, successive governments have sought to make the civil justice system more efficient, without compromising justice. HOW? If someone suffers a civil wrong, if they are the victim of a negligent driver, or suffer damage as a result of a defective product, or have their rights at work violated, then fairness and the rule of law requires that they should be able to bring a civil claim to enforce their rights. However, the adversarial system is expensive and complicated. In the late twentieth century, government decided that the civil justice system in England and Wales was too expensive. Since 1998 a number of reforms have been put into place to try to balance need for justice against the need to control costs. to make the civil justice system more efficient, without compromising justice. Today we will look at how they have done that, and whether they have been successful.

1. Effective case management Civil procedure rules (1998): the time and resources spent should be in proportion to the value and complexity of the case. The first element of this is the emphasis placed on effective case management. In 1999 new rules of civil procedure were put in place. The principle behind this was that the time and resources spent on a case should be proportional to its value. For this reason, at the start of proceedings civil claims are allocated to one of three tracks. Simple money claims for up to £10,000 are on the SCT (very simple procedures, claimants can represent themselves, they do not need solicitors) 10 to 25000, moderate complexity: FT – the case will follow standard procedures, little judicial involvement before the trial Over 25,000 or very complex > MT intensive personalised case management by a judge, several hearings to deal with legal or procedural issues before the trial (PI claims slightly different limits)

1. Effective case management The majority of claims are tried in the County Court. Only complex and high-value claims are tried in the High Court. Divisions of the High Court Queen’s Bench Division (QBD) This emphasis on proportionality also means that the majority of claims are kept in the County Court > which we saw last week is the lower civil court. 1. Which cases are heard by the County Court and the High Court At first instance, lower-value civil cases are dealt with by the County Court, i.e. money claims under £100,000 (and personal injury matters up to £50,000). Only complex or high-value claims – i.e. money claims above £100,000 and personal injury claims above £50,000 – it will be tried in the High Court. 2. What are the three divisions of the High Court? What types of cases do they hear? >The High Court which is divided into three divisions, each exercising original and appellate civil jurisdiction. the Queen’s Bench Division (QBD) deals with a variety of common law cases (but mostly tort and contract), the Chancery Division hears business law, trust and equity cases, the Family Division adjudicates on matters arising out of family law. The High Court hears applications for judicial review and can hear certain appeals from mags courts

1. Effective case management The majority of claims are tried in the County Court. Only complex and high-value claims are tried in the High Court. Divisions of the High Court Queen’s Bench Division (QBD) mostly tort and contract This emphasis on proportionality also means that the majority of claims are kept in the County Court > which we saw last week is the lower civil court. 1. Which cases are heard by the County Court and the High Court At first instance, lower-value civil cases are dealt with by the County Court, i.e. money claims under £100,000 (and personal injury matters up to £50,000). Only complex or high-value claims – i.e. money claims above £100,000 and personal injury claims above £50,000 – it will be tried in the High Court. 2. What are the three divisions of the High Court? What types of cases do they hear? >The High Court which is divided into three divisions, each exercising original and appellate civil jurisdiction. the Queen’s Bench Division (QBD) deals with a variety of common law cases (but mostly tort and contract), the Chancery Division hears business law, trust and equity cases, the Family Division adjudicates on matters arising out of family law. The High Court hears applications for judicial review and can hear certain appeals from mags courts

1. Effective case management The majority of claims are tried in the County Court. Only complex and high-value claims are tried in the High Court. Divisions of the High Court Queen’s Bench Division (QBD) Chancery Division mostly tort and contract This emphasis on proportionality also means that the majority of claims are kept in the County Court > which we saw last week is the lower civil court. 1. Which cases are heard by the County Court and the High Court At first instance, lower-value civil cases are dealt with by the County Court, i.e. money claims under £100,000 (and personal injury matters up to £50,000). Only complex or high-value claims – i.e. money claims above £100,000 and personal injury claims above £50,000 – it will be tried in the High Court. 2. What are the three divisions of the High Court? What types of cases do they hear? >The High Court which is divided into three divisions, each exercising original and appellate civil jurisdiction. the Queen’s Bench Division (QBD) deals with a variety of common law cases (but mostly tort and contract), the Chancery Division hears business law, trust and equity cases, the Family Division adjudicates on matters arising out of family law. The High Court hears applications for judicial review and can hear certain appeals from mags courts

1. Effective case management The majority of claims are tried in the County Court. Only complex and high-value claims are tried in the High Court. Divisions of the High Court Queen’s Bench Division (QBD) Chancery Division mostly tort and contract business law, trust and equity cases This emphasis on proportionality also means that the majority of claims are kept in the County Court > which we saw last week is the lower civil court. 1. Which cases are heard by the County Court and the High Court At first instance, lower-value civil cases are dealt with by the County Court, i.e. money claims under £100,000 (and personal injury matters up to £50,000). Only complex or high-value claims – i.e. money claims above £100,000 and personal injury claims above £50,000 – it will be tried in the High Court. 2. What are the three divisions of the High Court? What types of cases do they hear? >The High Court which is divided into three divisions, each exercising original and appellate civil jurisdiction. the Queen’s Bench Division (QBD) deals with a variety of common law cases (but mostly tort and contract), the Chancery Division hears business law, trust and equity cases, the Family Division adjudicates on matters arising out of family law. The High Court hears applications for judicial review and can hear certain appeals from mags courts

1. Effective case management The majority of claims are tried in the County Court. Only complex and high-value claims are tried in the High Court. Divisions of the High Court Queen’s Bench Division (QBD) Chancery Division Family Division mostly tort and contract business law, trust and equity cases This emphasis on proportionality also means that the majority of claims are kept in the County Court > which we saw last week is the lower civil court. 1. Which cases are heard by the County Court and the High Court At first instance, lower-value civil cases are dealt with by the County Court, i.e. money claims under £100,000 (and personal injury matters up to £50,000). Only complex or high-value claims – i.e. money claims above £100,000 and personal injury claims above £50,000 – it will be tried in the High Court. 2. What are the three divisions of the High Court? What types of cases do they hear? >The High Court which is divided into three divisions, each exercising original and appellate civil jurisdiction. the Queen’s Bench Division (QBD) deals with a variety of common law cases (but mostly tort and contract), the Chancery Division hears business law, trust and equity cases, the Family Division adjudicates on matters arising out of family law. The High Court hears applications for judicial review and can hear certain appeals from mags courts

1. Effective case management The majority of claims are tried in the County Court. Only complex and high-value claims are tried in the High Court. Divisions of the High Court Queen’s Bench Division (QBD) Chancery Division Family Division mostly tort and contract business law, trust and equity cases family law This emphasis on proportionality also means that the majority of claims are kept in the County Court > which we saw last week is the lower civil court. 1. Which cases are heard by the County Court and the High Court At first instance, lower-value civil cases are dealt with by the County Court, i.e. money claims under £100,000 (and personal injury matters up to £50,000). Only complex or high-value claims – i.e. money claims above £100,000 and personal injury claims above £50,000 – it will be tried in the High Court. 2. What are the three divisions of the High Court? What types of cases do they hear? >The High Court which is divided into three divisions, each exercising original and appellate civil jurisdiction. the Queen’s Bench Division (QBD) deals with a variety of common law cases (but mostly tort and contract), the Chancery Division hears business law, trust and equity cases, the Family Division adjudicates on matters arising out of family law. The High Court hears applications for judicial review and can hear certain appeals from mags courts

1. Effective case management Appellants must have leave to appeal. The Court of Appeal (Civil Division) hears appeals from the County Court (in some cases), the High Court and Upper Tribunals Appeals from the Court of Appeal (Civil Division) lie to the UKSC. In both cases > appellants need LEAVE to appeal = (permission) from lower or higher court The right to appeal is limited The Court of Appeal (Civil Division) hears appeals from the County Court (in some cases > often must go to High Court), the High Court and Upper Tribunals Appeals from the Court of Appeal (Civil Division) lie to the UKSC

2. Reductions in legal aid Since 1998, legal aid has been cut. 1998: 2012: Now only available for a small proportion of civil cases (e.g. discrimination, asylum, eviction) The second way that the gov has approached this is by tring to stop cases getting into the system, discouraging frivolous litigation, and shifting the cost of litigation onto the parties. What is legal aid? When was the legal aid system created? Legal aid: government-funded legal representation for claimants who otherwise would not be able to afford a lawyer. It was created in 1949 – seen as being essential to social justice. 2. How has the provision of legal aid changed since 1998? Since 1998, legal aid has been cut. (TENSE) 1998:in personal injury cases it was replaced (TENSE) by Conditional Fee Agreements (no win no fee > the lawyer represents the claimant, but is only paid if the claim is successful) 2012: The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 cut (TENSE) legal aid by £450m Lagal aid is now only available for a small proportion of civil cases > for example asylum applications, discrimination claims, or if someone if being illegally evicted > but not available for most tort claims, consumer disputes or employment claims.

2. Reductions in legal aid Why is this a problem? 3. Why is this a problem? Claimants whose rights have been violated may not be able to afford to defend those rights (to afford something) (There has been a he increase in Litigants in Person – ordinary people representing themselves – Why a problem?? can cause delays and requires extra resources as they are not familiar with procedures)

3. Encouraging litigants to use ADR "litigation should only be used as a last resort" 4. Explain the phrase "litigation should only be used as a last resort". The government’s position is that whenever possible civil disputes should be settled (=resolved VOC) outside of court (= an out of court settlement) using ADR > methods of alternative dispute resolution. Third way of improving efficiency. 5. When can mediation be used? In family and employment disputes A neutral mediator helps parties reach an agreed settlement (VOC) 6. When can conciliation be used? Before bringing a claim in a civil court or tribunal, or alongside a claim A neutral mediator helps parties reach an agreed settlement Compulsory (=obligatory VOC) in many employment disputes

3. Encouraging litigants to use ADR Mediation and conciliation: benefits and potential problems 7. What are the benefits of mediation and conciliation? What are the potential problems? Quicker and cheaper than a court case, claimant may be able to specify the terms of the agreement more clearly However, the imbalance of power, and lack of legal representation and advice for the claimant may lead to him receiving a less favourable settlement (VOC: dommages et intérêts) than he would have got at trial. 8. When is arbitration used? What are the advantages and disadvantages of this system of dispute resolution?

3. Encouraging litigants to use ADR Arbitration An arbitrator, following formal procedures, decides the case. The arbitrator’s decision is often legally binding. 8. When is arbitration used? What are the advantages and disadvantages of this system of dispute resolution? An alternative to a civil claim in a court or tribunal (eg employer > employee or trade union, or a company and a customer) An arbitrator, following formal procedures, decides the case. The arbitrator’s decision is often legally binding.(qui constitue une obligation ) ADV: cheaper, quicker, more flexible, less stressful; confidential (=secret) (more so than a court case) DIS; but procedures don’t give as much protection, its often compulsory in employment and consumer contracts, but arbitrator may not be totally neutral – not a judge, not public

4. Encouraging claimants to accept out of court settlements The judge can order the losing party to pay some of all of the other party’s legal costs will usually only cover 70-80% if ADR has not been accepted the judge may not award costs if a successful claimant has refused a formal offer to settle out of court (a “Part 36 payment”) … …which was more generous than the award made by the judge he may have to pay both parties’ legal fees from the point that the offer was made. The Fourth element in improving efficiency is that, even if cases do get to court, they are still encouraged to reach an out of court settlement. 9. If a claimant succeeds at court, will his legal costs be refunded? The judge can order the losing party to pay some of all of the other party’s legal costs will usually only cover 70-80% if ADR has not been accepted the judge may not award costs 10. What is a Part 36 offer? What is the effect of the procedural rules in relation to Part 36 offers? if the claimant has refused a formal offer to settle out of court (a “Part 36 payment”) he may be liable for both parties’ fees from that point on. > EFFECT? Puts the claimant under a lot of pressure to accept an out of court settlement if an offer is made (put someone under pressure)

5. The future…an online court? Would have jurisdiction over most disputes up to £25,000 Designed for use by litigants directly (no lawyers) triage: identify the issues a compulsory online conciliation stage resolution by a judge: possible online or telephone hearings Finally, the drive for efficiency is not complete. The government have also been closing courts > in 2016 announced the closure of 31 local county courts Many people are now quite a distance from their local court One way of dealing with this, as well as cutting costs, is the idea of an online court. 11. What type of cases would be heard by the online court, if Lord Justice Brigg's proposal is accepted? jurisdiction for all disputes up to £25,000, except for personal injury claims, claims for the repossession for homes, professional (non-clinical) negligence claims and intellectual property claims. Designed for use by litigants directly (no lawyers) It would have three stages Triage: identify the issue A Compulsory online conciliation stage > managed by a case lawyer As a last resort only Resolution by a judge: possible online or telephone hearings