Civil Courts Essay
'Discuss the advantages and disadvantages of the current system of dealing with civil cases in the courts.'
Written by Sarah Brimacombe (January 2007)
Introduction
In this essay I am going to discuss the advantages and disadvantages of the current system of dealing with civil cases in the courts. Before I get to this I am going to explain the civil court system and how it works.
Civil cases can cover a wide range of matters, so it is hard to specifically define them all; however a basic definition would be when a person or a business believes their rights have been infringed in some way. Some of the most common areas of civil law are contract law, law of tort, family law, employment law and company law.
Taking a claim to court should be a last resort so before this happens a lot of people will try to negotiate. A good example of this is when a customer takes back goods from a shop which is not up to standards and tries to explain the problem. In most cases the issue will be solved at this point with the shop promising to refund the money. If the party refuses to settle the claim then the aggrieved party is likely to then seek legal advice, with the solicitor then writing to the other person. If the party still doesn’t wish to co-operate then the only option remaining is court action.
The Woolf Reforms
In 1995 Lord Woolf carried out an inquiry into the civil justice system. His view was that the civil justice system should ensure access to justice. He believed that the system should be just in the results it delivers, be fair in the way it treats litigants, offer appropriate procedures at a reasonable cost, deal with cases at a reasonable speed, provide certainty in cases and finally be adequately resourced and organized.
The report found that virtually none of these were being achieved and that the civil court system was slow, expensive, uncertain and complicated. The report made 303 recommendations some of the most important being; extend small claims to £3,000, extend fast track up to £10,000, multi-track to over £10,000, encourage use of ADR, give judges more responsibility for managing cases and shorter timetables for cases to reach court and for lengths of timetables.
When the labour government came to power in 1997 they conducted a second opinion report in the form of the Middleton Report. This supported much of the Woolf proposals, but suggested that the small claims limit be raised to £5,000 and the fast track route to £15,000. These two reports resulted in the radical reform of the civil justice system in April 1999.
Allocation of Cases
Following the new Civil Procedure Rules of 1999, which had been a result of the Woolf Report and a secondary Middleton report, they introduced the three track system. The tracks were; small claims track, the fast track and the multi-track.
Small Claims
It is necessary for there to be a way to claim a small amount of money without the cost of doing so out weighing the claim, for this reason the small claims procedure was started in 1973. It is now possible to claim up to £5,000 in the small claims procedure.
The cases are heard in the County Court by a District Judge. People are encouraged not to use lawyers as this would raise their costs and it is not possible to claim the cost of lawyer fees from the losing party. The District Judges are encouraged to be more inquisitorial and take a more active role in the proceedings, asking questions and making sure both parties get the chance to explain all their important points.
Some advantages of the small claims is that the cost of taking proceedings is low, if you lose the case you do not have to pay the winning sides lawyers’ costs, people do not have to use a lawyer they can represent themselves, the procedure is quicker than for other cases and finally the District Judge should help the parties explain their case.
Some disadvantages of small claims is for cases over £1,000, an allocation fee has to be paid, legal funding for paying for a lawyer is not available, the bigger party may be able to afford a lawyer putting the other party at a disadvantage, district judges may not be as helpful to unrepresented claimants and finally even if you win the case there is no guarantee that you will get your money form the defendant. Only 60% of successful claimants actually receive the money awarded to them by the court.
Fast Track Cases
In 1998 before the Woolf reforms, the statistics showed that the average wait for cases in the County Court was 85 weeks from the issue of the claim to the hearing in court. As well as this they showed that cases were too expensive and often the costs of the case were higher than the amount claimed.
As a result of this the new fast track system was brought in, in which claims between £5,000 and £15,000 could be heard. Fast track meant that strict timetables would be set down by the judge and the aim was to have the case heard within 30 weeks. It was meant to stop delays and prevent the parties running up unnecessary costs. The actual trial was limited to one day, with usually only one expert witness allowed.
The advantages of the fast track system are it is meant to speed up proceedings and prevent unnecessary costs. It definatly does when it comes to the actual trial; however the disadvantage is the time delays between issuing a claim and the trial were only reduced by 6 months with it still taking 59 weeks.
Multi-track Cases
Claims that are worth more than £15,000 are usually allocated to the multi-track or cases which raise difficult points of law. If the case was started in the County Court is it likely it will be heard there however it can be sent to the High Court especially for claims over £50,000. The case will be heard by a Circuit judge who is expected to manage the case from the moment it is allocated to the multi-track route. The judge will set a timetable for the case which must be adhered to.
An advantage of the multi-track is that the case is carefully managed so time and money are not wasted, also if there are difficult points of law the judges are going to be more experienced with them. A disadvantage will always be cost, especially to represent you in the High Court.
Advantages of the Civil Court Process
Since the Woolf Reforms in his 1996 report Access to Justice and the new Civil Procedure Rules in 1999 the advantages of dealing with civil cases in the courts have become more apparent.
Some of these advantages are that judges are now encouraged to be case managers. This means they will set strict timetables and make sure the parties do not drag out the case unnecessarily. This saves the parties time and money. The judges will also understand the case well and can decide which issues need investigation and trial.
Another advantage would be that the final decision is up to the judge and is legally binding. This adds structure and finality to the case meaning that the parties can move on.
The court process also endeavors to make sure all people are treated equally. This is stated in Rule 1.1 of the Civil Procedure Rules. It states that the court should ensure the parties in any case are on equal footing.
In the same rule it states that the case should be dealt with in a way that is proportionate to the amount involved, which can prevent costs of the case being more than the amount being claimed. The importance of the case for example is there an important point of law involved and finally the issue of the case being involved.
Another advantage would be the use of precident, by the courts having to follow its own laws and previous cases it adds certainty to the court process. It helps give the parties an idea of the outcome of the case.
Some final advantages would be that legal representation is allowed in all courts when taking a civil claim and finally legal aid may be available depending on the amount of money being claimed.
Disadvantage of the Civil Court Process
Just like everything in life the civil court process does have its disadvantages which I am now going to discuss.
The main two are of course that it is very expensive and can take a long time, although now with the introduction of the fast track there is an opportunity for cases to be heard a lot quicker. However the expense is still going to be very high, with a lot of ordinary people not being able to afford it.
The formality of court can also be daunting for many people who wish to bring a claim and this can often put them off. It can be a very stressful time and having to deal with the cost and the amount of time it takes to get a case through court added to this formality can dissuade many people from bringing their claims court resulting in them not getting anything for their troubles.
Another disadvantage may be that even though a courts decision is legally binding sometimes it can just be impossible for them to enforce their decisions. People simply may not be able to pay the amount decided by the courts. A judge can offer a payment plan but it could end up that the claimant doesn’t get any of the money they are awarded. This can be damaging for them due to the fact they have spent a lot of money coming to court only to win but not receive any of the money.
There is also a problem that is caused when a big business or company comes up against a smaller party. The big company is likely to be able to afford good legal representation which can put the smaller claimant at a big disadvantage.
There is a flip side to a big company going to court and that is it is likely to create bad press for them. A court case is very public and large companies will want to try an avoid this at all costs, this could lead to an advantage for the smaller claimant as the large company may want to settle out of court saving the smaller claimant expenses.
Some final disadvantages may be going to court destroys the relationship between the two parties preventing any further relations and also even though the use of precident can be an advantage as stated earlier it can also be a disadvantage as it can cause injustices.
Alternative Dispute Resolutions
It is partly because of the disadvantages of the civil court process that the need for alternative dispute resolutions has been more important in recent years.
In the Woolf Reform it was recommended that there be more use of ADR and it is now thought that judges have a duty to encourage it, with the Civil Procedure Rules 1999 giving them the power to suspend court proceedings until ADR has been attempted.
There are four main forms of ADR which are negotiation, mediation, conciliation and arbitration. There are three main advantages that all forms of ADR have over taking a case to court and these are that it is much cheaper, quicker and less intimidating. However there are many more advantages specific to each area of ADR and of course there are also some disadvantages.
Negotiation
Negotiation is the simplest form of ADR and involves the two parties sitting down together and trying to reach a compromise. It can be used in any type of case.
Some advantages of this would be it can preserve the relationship between the two parties, for example if a company wishes to make a claim against one of their suppliers the likelihood is if they go to court their relationship will suffer however with negotiation they can preserve this and go on to still have a good business relationship in the future.
Another would be that it is likely that both parties would go away satisfied if not 100% happy. With negotiation both sides have to come to a compromise so they may not get all of what they wanted but they will have achieved something adequate. This is at a definite advantage over court because both parties could end up losing out in court, even the claimant. So negotiation is a way of making sure both parties get part of what they want.
Another advantage could be that judicial precident could help in the negotiation proceedings. It may help the parties to see what has come before in previous cases so that they can both get a fair outcome to the case.
The main disadvantage with negotiation is that the parties have to be willing to compromise and if this is not possible then the case may be unresolved. If this is the case then another form of ADR can be tried or it may just end up going to court.
Mediation
Mediation is the use of a third person who is neutral to both parties. They do not suggest an outcome but do encourage the parties to find common ground. It is most commonly used in divorce cases, contract agreements and disputes between neighbours.
Some advantages of mediation would be just like negotiation is can preserve the relationships between the parties. This can be very important in divorce cases especially when children are involved as both parties are going to want an amicable divorce so that they are able to stay “friends” and have future relations.
An advantage of having a mediator would be they are able to keep the peace between the two parties and also if things get a bit off track they are there to ensure the parties stay focused on what they are trying to achieve. This is important as in cases such as divorce the parties can sometimes become blurred as to what they actually want because emotions will be running high.
Some disadvantages may be that a solution cannot be reached, if the two parties are not willing to co-operate and compromise then the case may be unresolved. This can lead to further bad feeling between the parties and end up with them still having to go to court.
Although the mediator is there they cannot suggest solutions, they must stay completely neutral and not get involved with the merits of the cases.
Conciliation
Conciliation is the use of a neutral third person but unlike a mediator, a conciliator is free to play an active role in suggesting solutions. This is often used in unfair dismissal cases and industrial disputes.
Some advantages of conciliation would be it is less confrontational than court, so in the case of an unfair dismissal the smaller party is not going to feel so threatened by the company they are claiming against.
With the use of a conciliator they can give a neutral perspective of the case and often help with the decisions being made. This can help both parties as they may not be able to see each others points of view but with the help of the conciliator it will become clearer.
Another thing that could be an advantage is the fact that the parties get to choose the conciliator. This could be an advantage because it may be someone that both parties trust, however this can also have its disadvantages.
As I just mentioned above choosing a conciliator can be an advantage however if a big company is involved they may choose the conciliator which may lead to bias. Although this is very rare it is still possible.
Another disadvantage may also be that in an unfair dismissal case which involves a big company the smaller claimant may be leaned on slightly. The big company can often afford better lawyers and therefore this puts the smaller claimant at a serious disadvantage.
A final disadvantage may be that both parties may resent the interference of the conciliator. This could lead to the case being unresolved and may end with it being taken back to court.
Arbitration
Arbitration is where both parties agree to let a third person decide a solution, with this solution being legally binding. The arbitrator may be a lawyer or an expert in the field of the dispute. This is often used by holiday companies, in which they put a clause in a contract which states the case must go straight to arbitration instead of court.
The advantages of arbitration would be for a large holiday company going straight to arbitration is a lot more private and prevents bad publicity. On the flip side of this it may be a disadvantage for the smaller claimant because they may want the holiday company to get bad publicity.
Another advantage is the procedure although the most formal of all ADR is still very flexible. The case can be heard any time and any place that is convenient to both parties. It is also less stressful that court.
A final advantage would be the use of experts; this can make the case much simpler as they will know all about the specifics of the case.
Some disadvantages of arbitration may be that with the use of experts and lawyers comes larger costs than any other form of ADR. Although it is still a lot cheaper than court.
Another disadvantage would be a bigger company may have the money for better legal representation putting the smaller party at risk of losing the case.
Conclusion
In conclusion there are many advantages and disadvantages of the current system of taking civil claims to court. Since the Woolf report in 1996 and the new Civil Procedure Rules 1999 the civil courts system has improved vastly. From judges being case managers to the improvement of equal footing in courts. The introduction of the small claims, fast track and multi-track has also improved the speed and cost of bring claims to court. There however are still some disadvantages in the courts and even though the cost and speed of procedures have been improved they are still an issue for many people as is the formality of court.
To try and help overcome some of these disadvantages the use of ADR is more and more encouraged. This prevents such high costs and speeds things up a great deal. The methods are also less formal and intimidating than court.
In any case court should always be the last resort no matter how good or bad the system may be.
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