English Legal Procedure PDF

Summary If you bolden the reference or a word make sure to go over it. Key Vocabulary B = Barrister S = Solicitor Introduction - Old Bailey is the central criminal court in London. - The United Kingdom is made of England, Northern Ireland, Wales, and Scotland. - Great Britain...

Summary If you bolden the reference or a word make sure to go over it. Key Vocabulary B = Barrister S = Solicitor Introduction - Old Bailey is the central criminal court in London. - The United Kingdom is made of England, Northern Ireland, Wales, and Scotland. - Great Britain = England, Scotland, and Northern Ireland. - While the 4 nations are together, in the UK there are 3 different legal systems. - England and Wales have the same legal system. - Scotland has its own unique legal system. - Northern Ireland has its own unique legal system. - The political system and the legal system are NOT the same thing. The United Kingdom does share a POLITICAL system. - The goal of the course is to provide an introduction to civil and criminal matters in England and Wales. - Procedure is how you bring a case to a court and the people surrounding that. - We are going to learn how the civil and criminal system works. - Mid-term exam is October 17th for TD - TD & CM Final exam is November 28th - Recommended book is English Legal System 8th definition. Legal Professions - Introduction - The term ‘lawyer’ is a genetic term. Attorney is the same thing as a lawyer. - The two main roles for a lawyer are a Barrister & Solicitor. - A magistrate is a volunteer non-legal qualified judge or ‘lay’ judge who hears criminal cases in the Magistrate Court. They are also called Justices of the Peace (Informal name and used by lawyers). They sit in groups of three and they are assisted by a legal advisor (Also called a clerk), who is a solicitor or barrister. - An in-house lawyer is someone who works for a company. - Jurist is a more of an academic position/role. Barristers (Counsel) - The term counsel is more informal, and is more proper to call them barristers.  - Barristers are the oldest branch of the profession. - Must be a member of one of the Inns of Court: Middle Temple, Inner Temple, Gray’s Inn, Lincoln’s Inn. - Rights of audience in all courts. They are able to appear in any court. - Historically, they have no direct access to clients. - Usually they go through a solicitor then if extra help is needed they go to a Barrister. This is NOT always the case. - Cab rank rule: When a case comes in, as long as you are available ( and competent to do it ), you have to take it on. - They are self-employed, and usually work together in places called ‘Chambers’. - Represented by the Bar Council and regulated by the Bar Standards Board. - A barrister can also work in-house. Solicitors - They usually are the first point of contact for a client. - They do a wide range of work; including advocacy. - Rights of audience limited to lower courts. But can become a ‘solicitor-advocate’ (Courts and Legal Services Act 1990) - Can be in practice alone (sole practitioner) or work in a law firm. - Can work in-house - Represented by the Law Society and regulated by the Solicitors Regulation Authority. - Most of the time solicitors are the first ones to give generalized legal advice but in situations where the legal matter is complicated and nuanced, they tend to get the opinion of a Barrister. - While they may not directly represent the client in a courtroom, they tend to be the most informed about the case. Solicitors will often give information to the barrister regarding the case or clarify any area with foggy information. How to become a Barrister Academic Stage - Law degree (Takes 3 years) or Graduate Diploma in Law (GDL). If they acquired a different degree, they take a one year course (Admission to an Inn) Vocational Stage - Bar training course (Called to the bar), lasts one year. Work-based Learning - Pupillage, the equivalent of an internship. The first six months you shadow your teacher than after 6-months you are allowed to take your own work. It takes a total of five years to become a barrister. How to become a Solicitor Old route to qualification: Academic Stage - Law degree or Graduate Diploma in Law (GDL). 3 years Vocational Stage - Legal Practice Course (LPC). 1 year Work-based Learning - Training Contract, 2 years in a law firm. It takes a total of six years to become a solicitor. - Getting a training contract was extremely hard and a new route was made because of this problem. New way Note: This was first made in 2021 - Degree or equivalent. - Pass the SQE (Solicitors Qualifying Examination) 1 (Tests your legal knowledge) & SQE 2 (Tests your practical skills). It replaces the Graduate Diploma in Law. - Qualifying work experience. This means you only need 2 years of work experience of something law related, removing the work-based contract. - Meet the suitability requirements. If you have anything related to dishonesty or theft, it will make it practically impossible to become a solicitor. Qualification and beyond Barristers - After pupillage, you become a junior barrister. You will remain a junior barrister unless you become King’s Counsel or ‘Take Silk’. - ‘Take silk’: become a King’s Counsel (KC) - In 2023 there were 17783 practicing barristers in England and Wales (of whom 1958 were King’s Counsel). Solicitors - After qualifications, admitted to the roll of solicitors - As at July 2024 there were 167,648 practicing solicitors in England and Wales. Legal Apprenticeships - Introduced in 2016 and provide another way of training to become a solicitor - Start working at a law firm without going to university - Spend part of your time working in a law firm and part of your time studying for a law degree and the SQE. - You can eventually qualify as a solicitor. - Not many legal apprenticeships available. Legal Executives - Members of the Chartered Institute of Legal Executes (CILEx) - Do work which is similar to a solicitor but specialize in a particular area. - Required to undertake both academic and work-based training but can do these at the same time. - Have limited rights of audience. - Are employed by solicitors (cannot have their own firm) - Existing work experience will be recognized as qualifying work experience. - There are around 20,000 active legal executives. Paralegals - Work in a law firm but are not qualified solicitors or legal executives. - Usually carry out work similar to a trainee or junior solicitors. - Previously: this work experience was not a route to qualification. - Now: this work experience could count as qualifying work experience. Homework for 9/5/2024 Go to the Supreme Court System UK What are their names? Robert John Reed, Patrick Stewart Hodge, David Lloyd Jones, Michael Townley Featherstone Briggs, Philip James Sales, Nicholas Archibald Hamblen, George Andrew Midsomer Leggatt, Sir Ben Stephens, Dame Vivien Rose, David Anthony Stewart Richards, Dame Ingrid Ann Simler. What gender are they? 10 men and 2 woman What branch of the legal profession do they come from? All of them are barristers. What else do you know about their backgrounds? Go read page 9 of the brochure before the next class Bit.ly\3TF9eBR Categorizing Law: Common Law Systems and Civil Law Systems: Common Law: Wales and UK Civil Law: France and Germany Common Law and Equity Two historical sources of law, now united in the English courts. Common Law and Statute: Two sources of English law. C/law is ‘judge-made’ while statute is enacted by Parliament Private Law and Public Law: Terms which show who the law relates to. Private law regulates the relationship between ordinary citizens, while public law is addressed to public bodies. Civil Law and Criminal Law: Civil law regulates disputes between individuals, while criminal law allows the State to regulate the behavior of citizens. Examples: Donoghue v Stevenson (1932) This is a case about the tort of negligence. It established that a manufacturer owed a duty of care (a duty not to injure) the ultimate consumer. The problem Mrs. Donoghue couldn’t have the case brought to contract law because she didn’t buy the drink but her friend. She brought the case to tort law in an act of “Tort of Negligence”. This is the case that established the “tort of negligence”. R v Letby (2023) Lucy Letby was convicted of murder and attempted murder of newborn babies at the hospital where she worked as a nurse. - All criminal cases begin with the letter R and the letter R stands for “Rex” (King is ruling) if it's the queen its “Regina”. Supreme Court | | Court of Appeal (There is only one court of appeal, one division for each side) This is where both civil and criminal cases meet. Crown Court High Court | | Magistrates' Court County Court Magistrates’ Crown deals with smaller crimes. The Crown Court deals with bigger crimes such as murder. The Country Court deals with cases with under £ 100,000 or £ 50,000 if the bodily injuries are involved. The High Court deals with anything above £ 100,000 or £50,000 if bodily injuries are involved. Original or appellate Jurisdiction - The courts that have original jurisdiction are Magistrates, Crown, High, and County - Appeallte jurisdiction are Crown, High, Court of Appeal, and Supreme Types of Courts High Court - There are three divisions within the High Court: Chancery, Queen’s Bench and Family divisions. The Court System: What you need to know - What types of cases are heard in each court (civil or criminal) - Which are the superior courts and which are the inferior courts. - Which are the first instance courts and which are the appellate courts - What are the 3 divisions of the High Court. The UK Supreme Court Historical background - Formerly known as the House of Lords (the ‘Law lords’) Separation of powers - Executive (government) proposes law - Legislature makes the law - Judiciary enforces law. Constitutional Reform Act 2005 - Created the Supreme Court - Changed the way judges are appointed (Created the Judicial Appointments Commission) Supreme Court judges no longer sit or vote in the House of Lords. Court system in Scotland and Northern Ireland - The Supreme Court is a UK court - final court of appeal in the UK for civil cases, and for criminal cases in England, Wales and Northern Ireland. - Northern Ireland has a separate court system - structure is a similar to England and Wales - Scotland has a different court system: - Court of Session - Supreme Civil Court (but can appeal to UK Supreme Court) - High Court of Jusiticiary The Judiciary - Distinguish between legally qualified judges and ‘lay’ judges. They are also known as magistrates. A jury can be a ‘lay’ judge or members of a tribunal. - Lord Chief justice is the most senior member in the judiciary. How are Judges are appointed - To be a judge you have to be a barrister or solicitor. - After having 5 years of experience as a lawyer you can become a judge. - They are selected by the The Lord Chancellor on merit - The previous problem was that while it could find high quality candidates, it didn’t show the complete pool of people that volunteered for the role (Mostly solicitors). It was more about networking/who you knew instead of the quality of the person. It prevented diversity. - For appointments to the Supreme Court, there will be a selection commision which includes a member of each of the JACs (Judicial Appointments Commission) from England and Wales, Scotland, and Northern Ireland. - While there is n Diversity Women Supreme Court: 16% All judges: 38% Magistrates: 57% Over 50% of solicitors are women but the higher you go up in the field the less women. Ethnic minorities Supreme Court: 0% All judges: 12% Magistrates: 13% 19% of solicitors are an ethnic minority. Barristers Supreme Court: 100% All Judges: 70% Diversity in the judiciary - “Diversity in the private sector legal profession in its senior ranks is essential for ensuring diversity in the judiciary” Constitutional Reform Act 2005 amended in 2013: - JAC is not prevented, ‘where 2 persons are of equal merit, from preferring one of them over the other for the purpose of increasing diversity.” - Pre-Application Judicial Education programme launched in April 2019. - There is also Judicial Work Shadowing Scheme & Solicitor Judges Network Why does it matter to be diverse? - “It is reasonable to assume that the public will readily accept that the judiciary should be populated by educated and skilled lawyers. But confidence is likely to be higher if it is clear that the skilled and educated lawyers come from all sections of society and are not skewed towards, or against, any particular group.” - “If the Judiciary does not broadly reflect the make-up of our society, we risk undermining the social contract that binds us together.” Certain crimes can only be heard in certain courts. Murder is in Crown Court. Tort = Wrongful interference of goods When you are convicted of both a criminal trial and a civil trial, you are in two different cases. Magistrate Courts - The magistrate court deals with over 90% of all criminal cases. - District Judges of the Magistrate Court are legally qualified. They used to be known as a stipendiary magistrate. - There are around 13,000 magistrates in the country. - There are only 150 district judges. - Only 7% under the age 40. - Only 81% are over 50.  Professional judges better than lay magistrates? Yes (For district judges) No (For magistrates) - Legally qualified - no training costs - Helps the criminal justice system - More objective and impartial - They cost less money than DJ - More efficient - More diverse - More resentful - Fairer since they are three people who come - More trusted to a decision. - More consistent - Larger workforce Civil Justice System Vocabulary for Civil Litigation - Litigation is the taking of legal action by a litigant. “Litigant in person” is somebody who doesn’t have any legal representation. “Litigator” is a lawyer who specializes in litigation. - In the UK you are able to represent yourself in any court. - Some expressions for taking legal actions: To sue someone To take action against someone To make (bring,lodge, file) a claim against someone To litigate someone Adversarial v Inquisitorial system - “The English Legal system has always been categorized as an adversarial system with the judge sitting as an umpire rather than a participant in cases. As a consequence the conduct of the cases was to a large degree in the hands of the lawyers.“ - “The adversarial and inquisitorial models are distinguished primarily by where the parties or the court control three key aspects of the litigation: initiating the action, gathering the evidence, and determining the sequence and nature of the proceedings”  The current legal system uses the Civil Procedure Rules 1998 (REMEMBER THIS) The 10,000 £ is a mistake, it means 100,000 £ Civil Procedure Rules 1998 - Apply to all civil proceedings in the County Court, High Court, and Court of Appeal (Civil Divisions) Separate rules for family law: Family Procedure Rules The Supreme Court has its own rules: Supreme Court Rules 2009 - Do not apply to Scotland or Northern Ireland - Modern legal terminology “Plaintiff” became “Claimant” The overriding objective of the Civil Procedure Rules Rule 1.1 - These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. 1. Ensuring that the parties are on an equal footing 2. Saving expense 3. Dealing with the case in ways which are proportionate: A. To the amount of money involved B. To the importance of the case C. To the complexity of the issues D. To the financial position of each party 4. Ensuring that it is dealt with expeditiously and fairly  5. Allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases 6. Enforcing compliance with rules, practice directions and orders. Rule 1.3, Duty of the Parities - The parties are required to help the court to further the overriding objective. Rule 1.4, Court’s duty to manage cases - The court must further the overriding objective by actively managing cases. - Active management includes E. Encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate F. Helping the parties to settle the whole or part of the case G. Fixing timetables or otherwise controlling the progress of the case Before suing somebody: - You must first make a claim against the person you’ll sue. - The defendant must give the appropriate documents for the claim made against them. - If the defendant does not produce the appropriate documents they will be forced to pay all fees regarding the court case. Outline of the litigation process Before anything, the cost: - Your lawyer’s fees - Court fees - Other fees (Experts) - Other party’s costs if you lose The average value of a dispute is £18,000 and the cost of resolving it is £17,000 Limitation Period - Limitations Act 1980 sets out fixed periods of time for issuing different types of proceedings - If proceedings commenced outside this time, the case will be ‘statute-barred’. Section 2 Limitations Act 1980: - An action founded on tort shall not be brought after the expirations of six years from the date on which the cause of action accrued. Section 5 Limitations Act 1980: - An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued. Section 11 Limitations Act 1980: - Special time limit for actions in respect of personal injuries. The period applicable is three years from (a)the date on which the cause of action accrued, or (b)the date of knowledge ‘if later) of the person injured. Outline of Civil Litigation Process Mr. Happy bought an iPad and after a few weeks it stopped working. He goes to the shop and asks if he can get it repaired or get a new one. Section 9(1) Consumer Rights Act 2015: ‘Every contract to supply goods is to be treated as including a term that the quality of the goods is satisfactory.’ Stage 1: Pre commencement - Before starting legal proceedings - Practice Directions supplement the CPR - Practice Direction - Pre-action conduct and protocols - Steps before issuing a claim at court (para 6) 1. Claimant writing to defendant (letter before claim)  2. Defendant responded within a reasonable time. 3. Parties disclosing key documents relevant to dispute - ‘Litigation should be a last resort’ (Para 8) - Consequences of non-compliance with Practice Direction on pre-action conduct See para 15 - the court may order that A. The parties are relieved of the obligation to comply B. The proceedings are ‘stayed’ while particular steps are taken to comply C. Sanctions are to be applied. Mr. Happy goes to court as he has done everything above. Stage 3 - Interim Matters - Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than [... ] [14 days before the hearing ]. (These should include the letter making the claim and the reply). - The original documents must be brought to the hearing. - [Notice hearing date and time allowed] - The parties are encouraged to contact each other with a view to trying to settle the case or narrow the issues. The court must be informed immediately if the case is settled by agreement before the hearing date. - No party may rely at the hearing on any report from an expert unless express permission has been granted by the court before hand. Anyone wishing to rely on an expert must write to the court immediately on receipt of this order and seek permission, giving an explanation why the assistance of an expert is necessary. Note: Failure to comply with the directions may result in the case being adjourned and in the party at fault having to pay costs. Stage 4 - Trial - Court makes a judgment ( order ) - Usually no costs Stage 5 - Post Trial _ - Appealing the judge’s decision - Enforcing the judgment Start of TD Tort of Negligence (Not taking care)  - First you must show there is a duty of care. (Duty not to injure someone or their property) - The defendant breached that duty - The claimant suffered damage as a result of that breach. What you need to know about a Civil Case before bringing to court Facts of the Case - Details about the case: When? Where? What happened? Are there any witnesses? Any key documents? - What does the client want? Do they really want to go to court? Costs - Your (Lawyer) fees - Court fees - Expert fees - If they lose, they might have to pay the other parties’ cost. - Does the client have legal expenses insurance? Defendant's details - Name + Address of your client and the person against them (Is is outside the jurisdiction of the UK court) - Is it an individual or a company? - Relationship to the client You have to feed the litigation (I.E you have to give evidence). Check the limitation period Practice Direction on pre-action conduct After all the procedures above have been done, you write a letter before claim to the defendant. Homework for 19/09/2024 Dear Mr. Templar Subject: Incident at Bliss Lodge We are instructed by Mr and Mrs Simpson of Bliss Lodge, Steep Lane, Nowhere, Mythshire, GU15 6AB. As it has not been possible to resolve this matter amicably, and it is apparent that court action may be necessary, we write in compliance with the Practice Direction on Pre-Action Conduct. The facts of this case are [that you recently accepted to rent part of the property of the Simpson’s household for a couple months. While you were driving into the driveaway of Mr & Mrs Simpsons house before your motor vehicle crashed into their home, damaging their garden, kitchen, and the furnishing & fittings. ] Mr and Mrs Simpson are claiming from you [£ 100,000 in damages in order to fix all damages caused by the car.] Listed below are the documents on which Mr and Mrs Simpson intend to rely in their claim against you... - Police Report of the incident of XX/XX/XXXX - Reparation Bills - Construction Expert Report Our client would consider Alternative Dispute Resolution (ADR) in order to avoid the need for this matter to be resolved by the courts. In closing, we would draw your attention to paragraph 15 and 16 of the Practice Direction which gives the courts the power to impose sanctions on the parties if they fail to comply with the direction including failing to respond to this letter before claim. We look forward to hearing from you within the next 28 days. Should we not receive a response to this letter within the time frame then we anticipate that court action will be commenced with no further references to you. Yours faithfully, Raffael Tchassama-Lacroix Chapter 4 Stage 2 – commencement of the action Which court? Practice Direction 7A 2.1 Proceedings (whether for damages or for a specified sum) may not be started in the High Court unless the value of the claim is more than £100,000. 2.2 Proceedings which include a claim for damages in respect of personal injuries must not be started in the High Court unless the value of the claim is £50,000 or more 2.3 A claim must be issued in the High Court or the County Court if an enactment so requires. Online Money claim up to £10,000 https://www.gov.uk/make-court-claim-for-money/make-claim Money claim under £100,000 https://www.moneyclaim.gov.uk/web/mcol/welcome Not for personal injury cases Issue and serve claim form and particulars of claim Complete claim form and send or give it to the court (and pay a fee) The court ‘issues’ the claim form by sealing it with the court seal CPR 1998 Part 7.2: (1) Proceedings are started when the court issues a claim form at the request of the claimant. (2) A claim form is issued on the date entered on the form by the court. Service of the Claim Form - Claim form and particulars of claim must be served no later than 4 months after issue. - Rules governing service are set out in Part 6 CPR 1998, which permits following methods: 1. Personal service (Giving the claim form to the defendant) 2. First-class post, document exchange or other service which provides for delivery on the next business day. 3. Leaving the claim form at a specified place (including usual or last-known residence) 4. Fax or other means of electronic communication McAlpine Ltd v Richardson Roofing Co Ltd EWHC 982 - Any other method authorized by the court. - Claim form is usually served by the court, by first-class post. Acknowledgment of service - The defendant completes the “acknowledgment of service form” and flies this at the court where the claim was issued. - The defendant does this if they are not yet ready to file the defense - It must be filed within 14 days after the service of the particulars of claim. - The court will send a copy to the claimant Filing a defense - The defense must be filed within 14 days (or 28 days if an acknowledgment of service has been filed) after service of the particulars claim. - The court will serve a copy of the defense on the claimant. Admission of a claim - The defendant services the appropriate ‘form of admission’ on the claimant (depending on whether the defendant admits the whole or part of the claim. - If the defendant admits the whole claim, the claimant can then file a request for judgment Counterclaim - If the defendant wants to make a counterclaim, they must file details of the counterclaim with their defense. Defendant does not respond - The claimant can claim ‘judgment in default’ - Judgment is given in favor of the claimant without the need for a trial.  - The defendant can apply for the judgment to be ‘set aside’. The court can set aside a judgment if (CPR 1998 Part 13): A. the defendant has a real prospect of successfully defending the claim; or B. it appears to the court that there is some other good reason why – 1. (i) the judgment should be set aside or varied; or 2. (ii) the defendant should be allowed to defend the claim. What else could happen? - Statement of case could be struck out - CPR 1998 Part 3.4 (2) 1. For example, if it shows no reasonable grounds for bringing or defending the claim. - Claimant decides to discontinue proceedings 1. The claimant has to file and serve a notice of discontinuance 2. The claimant will be liable for the defendant's costs. Summary Judgment - CPR 1998 Part 24.2 - Summary judgment is when a judge stops a case early, deciding who wins because the facts are clear and no full trial is needed. - The court may give summary judgment against a claimant or defendant if: (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial. - Claimants or defendants can obtain judgment at an early stage without the need for a full trial. Extracts from the Judgment - The court must consider whether the [defendant] has a “realistic” as opposed to a “fanciful” prospect of success - Taken as a whole the disclosures were manifestly excessive and hence unlawful. There is no prospect that a different judgment would be reached after a trial. - There are compelling reasons not to allow this aspect of the case to go to trial. It has already consumed large amounts of resources, both private and public. The early resolution of liability often benefits both parties, making it easier to compromise what remains. Attempts to settle a case - CPR 1998 Part 1.4 (2) Active case management includes: 1. Helping the parties to settle the whole or part of the case.  - Practice Direction - Pre-action conduct A. Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. - Direction Questionnaire Do you want to attempt to settle at this stage? If yes, do you want a one month stay? ‘Without prejudice’ - Negotiations that take place as part of a genuine attempt to settle a case are ‘without prejudice’ - You cannot rely on anything said or written during those negotiations for the purpose of proving liability at trial Part 36 Offers (REMEMBER THIS TERM) Claim for £3.7million Defendant made an offer to settle £110,000 - Offer must be in writing and must remain open for at least 21 days - Offer is ‘without prejudice save as to costs’ Claimant rejected the offer Court awarded claimant £2,000 Usual rule = loser pays winner’s costs (see CM5) But claimant penalized for not accepting offer (has to pay defendant’s costs from time when offer expired) King/Queen’s bench is for matters that relate to Tort Law. Digitalizing the civil justice system - Lord Justice Briggs Civil Courts Structure Review 1. Published July 2016 2. Recommend online court for money claims up to £25,000 - Online commencement of money claims 1. For specified (Fixed) sum under £100,000 - Online Civil Money Claims Pilot 1. For money claims up to £10,000 2. Issue and respond to claims online 3. Online directions questionnaire and directions - Virtual (‘remote’) hearings Trial  - How long does it take to get to trial? 1. Small claims - 54 weeks from issue of claim 2. Fast and multi-track cases - 80 weeks from issue of claim - Hearing Fee 1. Small claims track (depends on amount of claim - maximum fee is £346). 2. Fast track - £545 3. Intermediate and multi-track - £1175 - In 2023, over 1.5 million claims were issued in the county courts. 1. Only 53,000 of those cases ever go to trial. Where does the trial take place? - Small claims cases - in the judge’s chambers (or no hearing). Otherwise it is in a courtroom. - Usually no jury in civil cases. - The burden of proof is on the claimant - The standard of proof is the balance of probabilities (more likely than not). Is the defendant guilty for more than 50% of the action Order of proceedings at trial - Claimant’s opening speech - Claimant’s witnesses give evidence (and can be cross-examined, orally, by the Defendant's lawyer) - Defendant’s opening speech - Defendant’s witnesses give evidence (and can be cross-examined, orally, by the Claimant’s lawyer) - Defendant’s closing speech - Claimant’s closing speech - Judgment Adversarial or Inquisitorial system Yes, because... - Parties come to court with their witnesses and put their arguments to the judge. - It's the parties which witnesses to call. - Judge plays a passive role No, because... - Judge gives directions and can have a case management conference. - Judge has the power to strike out a claim (or defense) - The small claims track is more inquisitorial. Judgment (Can be called an order) - Can be given immediately or ‘reserved’ - The judgment comprises: 1. Liability (Who won the case) 2. Remedies (Quantum) 3. Costs (Legal fees: Lawyer fees, court fees, and miscellaneous fees [Expert fees]) CPR Part 44(2): If the court decides to make an order about costs A. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but B. The court may make a different order. Damages (monetary compensation) - Damages is a common law remedy and is the usual remedy in the English legal system. - The aim is to compensate, not to punish - In tort law the aim is to compensate someone, as far as money can, for the injury suffered: to put the injured party in the position they were in before the relevant event. - In contract law the aim is to put the innocent party in the position they would have been in if the contract had been properly performed. Equitable Remedies - Equitable remedies are awarded at the discretion of the court, where damages are not an adequate remedy. 1. Specific performance (exécution forcée) - A court order requiring a party to perform its contractual obligation. 2. Injunction - A court order ordering a person to do something or to stop doing something. - For example, to stop an employee disclosing confidential information in breach of their employment contract. Appeals (CPR Part 52) Key Points: 1. Permission (or ‘leave’) to appeal: - Part 52.3 (1) An appellant or respondent requires permission to appeal - Part 52.6 Permission to appeal test - first appeals A. Permission to appeal may be given only where 1. The court considers that the appeal would have a real prospect of success; or 2. there is some other compelling reason for the appeal to be heard 2. An appeal in a civil case is to the next level of judge, not necessarily the next level of court: - Case heard by District judge in County Court – appeal to Circuit judge in County Court - Case heard by Circuit judge in County Court – appeal to High Court judge in High Court - Case heard in the High Court – appeal to the Court of Appeal 3. The appeal will be a review of the lower court’s decision, not a rehearing. 4. The general rule is that there is only one appeal. - An application from the High Court or County Court for a second appeal is made to the Court of Appeal and must satisfy the ‘second appeals test’: - CPR Part 52.7 (2) The Court of Appeal will not give permission unless it considers that- 1. The appeal would I. Have a real prospect of success and II. Raise an important point of principle or practice; or 2. There is some other compelling reason for the Court of Appeal to hear it. 5. Powers of the appellate courts - CPR Part 52.20 (2) The appeal court has power to: A. Affirm, set aside or vary any order or judgment made or given by the lower court; B. Refer any claim or issue for determination by the lower court; C. Order a new trial or hearing. 6. Appeals to the Supreme Court - Involve points of law of public or constitutional importance - Permission is needed to appeal to the Supreme Court - Exceptionally, appeals may be made directly from the High Court (‘leapfrog’ procedure) Enforcement of a judgment 1. Taking control of goods A. Seizing and selling the debtor’s goods 2. Charging Order A. Charge placed on debtor’s land/house 3. Third Party Debt Order A. Third party/bank has to pay the creditor directly. 4. Attachment of earnings order A. Requires debtor’s employers to deduct the amount due from debtor’s salary to pay the creditor. Taking control of goods:  - Have to obtain a writ of control (High Court) or warrant of control (County court) which is then executed by an enforcement officer (‘bailiff’) - A County Court judgment of more than £600 can be enforced in the High Court (can be ‘transferred up’ to the High Court for enforcement) - Enforcement officer cannot force entry into someone’s home - Cannot take things for use in debtor’s job/work or for satisfying basic domestic needs of debtor and his family. Enforcement - Equitable remedies - Breach of order for specific performance or injunction is a ‘contempt of court’ - Punishable with a fine or imprisonment Homework for 10/3/2024 A) Whether suing TV World was worth it because of the court fees, hearing fee, expert’s fee, lawyer’s fee - in a small claims case the winner’s fees are not paid. Self representation might be the best option. B) Write a letter before claim to TV World (This includes facts of the case, she wants from the defendants, key documents, and consider ADR [A settlement, remember PRACTICE DIRECTIONS]) C) County Court - Civil Case - Breach of contract - Under £100,000 Mr & Mrs Simpson 1. Client Meeting 2. Letter Before Claim 3. [Defendant’s response] 4. Issued the claim form 5. Claim served to the defendant (and particular of claim) 6. File an acknowledgement of service then file a defense (and counter claim if it if fits) 7. Directions questionnaire (Usually the claimant) 8. Allocation to a track -> Multi-track CM6 ADR Definition: A means of resolving disputes without resorting to court action. It is available in regard to civil, but not criminal, cases.  Why is it needed? Court action is not always the most appropriate means of resolving a dispute. Consider, for example: - The complexity of law and legal procedures - The cost of court action, including legal representation - The intimidating atmosphere of the courts - The delay in resolution - The public nature of court action - The adversarial nature of court action, which may result in a further deterioration of relationships between the parties. Litigation - The process of Negotiation - A form of ADR (Alternative Dispute Resolution) where the two parties negotiate. Types of ADR Key Notes Mediation There is a mediator to help the parties resolve their dispute. A mediator is appointed by the parties and can be, but does not have to be, legally qualified. They do NOT favor a particular side. The parties can communicate and negotiate through the mediator. Mediation does not delay court. Discussions are on a ‘without prejudice’ (Cannot be used as evidence in court) basis Emphasis is on getting the parties themselves to agree a settlement Mediation can be done without both parties dealing with one another directly. The Mediation Pilot Scheme: From May 2024 the small claims mediation service is now mandatory. Example: small claims mediation service Small Claims Mediation: - Free  - Can be done relatively quickly up to a few weeks - It can happen over the phone or in-person. - Once resolved they create a legal binding document AKA Settlement agreement. Mediation in commercial Cases: - “It is rare for a major commercial case to proceed to trial without at least one mediation.” Conciliation There is a conciliator to help the parties resolve their dispute. A conciliator helps the parties to explore options for settling a dispute A conciliator can suggest different options and point out the positive and negative consequences of the various solutions. Key differences for conciliators as mediators are not as involved. Example: The ACAS (Advisory,Conciliation and Arbitration Service) conciliation scheme in employment disputes If you are intending to make an employment tribunal claim, you have to tell ACAS ACAS will offer you ‘Early Conciliation’ Arbitration There is an arbitrator to help the parties resolve their dispute. A more formal procedure who imposes a decision instead of suggesting or convincing. Panels of Arbitrator (A group of them) or a single one can be present. If a group, each party picks an arbitrator and both arbitrators pick the third one. Arbitrators are specialized in a particular trade. Can be taken on video conference but usually a very formal procedure and done at a office or meeting space. Arbitrators are governed by the Arbitration Act of 1996: The provision of this Part are founded on the following principles, and shall be construed accordingly– A. The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense. B. The parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest; C. In matters governed by this Part the court should not intervene except as provided by this Part. Advantages: - Cost (usually cheaper than litigation) - Speed (usually quicker than litigation and no appeals) - Private, confidential - Less formal, less confrontational - Specialist arbitrator with expert knowledge - Arbitral award can be enforced through the court system (s66 Arbitration Act 1996) Disadvantages: - Cost (Still expensive) - Difficult to appeal. However an award can be challenged on the ground of ‘serious irregularity’ (section 68 Arbitration Act 1996). This includes: 1. © Failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties 2. (G) The award being obtained by fraud or the award or the wa in which it was procured being contrary to public policy. In international cases arbitration is preferred to resolve disagreements. The United Nations Conventions on Recognition  and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention) It states that all 150 states who ratified it agree to: - Respect arbitration agreements - Recognise and enforce foreign arbitral awards. Other reasons why litigations might be preferred: - If there is a point of law involved - If you have a strong case The Mediation Pilot Scheme Churchill v Merthyr Tydfil County Borough Council - ‘a seismic shift to the English legal system’ - Comments in Halsey case were obiter - A court can lawfully order parties to participate in a non-court-based dispute resolution process (so long as it does not ‘impair the very essence of the claimant’s right to a fair trial’) Change to Civil Procedure Rules from 1st October 2024 - Part 1.4(2) CPR : Active case management includes – 1. (e) ordering or encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure Is litigation the best way of resolving disputes in civil cases? “ In a market society such as England and Wales… the best lawyers will always be in demand and can charge significant fees. This…creates a power imbalance between those who can afford these fees and those who cannot” Is ADR privatizing civil justice? ‘Certainly, a policy of diverting cases to private mediation is an easier and cheaper option for governments than attempting to fix dysfunctional public adjudication systems.’ Class assignment: After the Tapie case, I think that arbitration is still a good alternative to litigation because... Arbitration depending on a case can provide a clear, concise, and efficient way to resolve a complicated matter. While it is possible for the process to be exploited, arbitration does not remove the possibility to appeal a decision if it violates the Arbitration Act of 1996. From the perspective of time and resources, arbitration is superior to litigation if an unbiased arbitrator can be guaranteed. Employment Rights Act 1996 To be fired you need a - A fair reason (misconduct) - A fair procedure