Essay Title: 'Discuss the advantages and disadvantages of the current system of dealing with civil cases in the courts.'

Written by Charlotte Langridge

Introduction

Firstly I shall give a brief overview of what civil law actually is. Civil Law is the sector of the law that deals with disputes between individuals. Civil Law generally involves the disputes over property, commercial transactions or family matters such as divorce and adoption. Civil Law generally leads to some kind of compensation for the offended party, whereas criminal law looks to punish and rehabilitate the offender. There are two main courts which hear civil cases at first instance. These are the County Courts and the High Court. There are numerous methods for dealing with civil cases in these courts and I shall now discuss these, giving both advantages and disadvantages.

How are civil cases resolved in the courts?
Before the implementation of the Woolf Reforms, there were two separate sets of civil procedure rules for the County Courts, the High Court and Court of Appeal. The system was heavily criticised for being too expensive and slow. In April 1999 new Civil Procedure Rules and accompanying Practice Directions came into force. The new rules introduce the main recommendations of Lord Woolf in his final report, Access to Justice. The reforms suggested by Woolf aim to eliminate unnecessary cost, delay and complexity in the civil justice system. The ultimate goal is to change the litigation culture. Thus, the primary rule of the new Civil Procedure Rules lays down an overriding objective which is to underpin the whole system. Woolf emphasises the rules should enable the courts to deal with cases justly. Furthermore, the new Civil Procedure Rules introduced a three-track system to make the system of dealing with civil cases easier. These tracks are: 1. the small claims track, 2. the fast track, 3. The Multi-track.

The Small claims track
Small claims are usually claims under the cost of £5,000. The English Legal System by Jacqueline Martin explains that people are encouraged to take their own case so that costs are kept low. However, small claims cases are started in a similar way as all other cases. The use of layers is discouraged due to the heavy expense, however it is possible to have a lawyer to represent you at a small claims hearing, and the winner cannot claim the costs of using a lawyer from the losing party. Small claims cases used to be heard in private, but under the Woolf reforms they are now heard in an ordinary court. Judges are now encouraged to be more inquisitorial and are given training in how to handle small claims cases, so that they will take an active part in the proceedings. So what are the advantages and disadvantages of small claims?

Advantages of Small Claims
There are various advantages of small claims which I shall now discuss. The first major advantage is the low expense. Claims under £1,000 cost a considerably low amount which is helpful to the ordinary person who may not be able to afford substantial courts. Secondly, if you are unfortunate enough to lose your case you will not have to pay the other person’s lawyers’ costs. Another beneficial advantage is the choice of using a solicitor or not. People are not required to have legal representation however it is obviously an advantage if you can afford one. Furthermore, the process is much quicker than for other cases, this is useful for someone who may have a hectic lifestyle who could do without court cases hanging over them. Finally, the district judge is a major advantage as he/she should help both parties to explain their case. From this we can understand there are many advantages of the small claims track, however there are also a number of disadvantages which we must consider.

Disadvantages of Small Claims
Unfortunately there are a number of disadvantages which I will now explain. Firstly, for cases over £1,000, an allocation fee has to be paid. This is obviously a major disadvantage to the ordinary person who just wants their issue to be resolved; they don’t really want to be spending court costs which may end up costing more than their claim. Secondly, legal funding for paying for a lawyer is not available, though it may be possible to fund the case through a ‘no-win, no fee’[1]. Thirdly, where the other side is a business they are more likely to use a lawyer. This obviously puts the claimant at a serious disadvantage. Furthermore, research undertaken by John Baldwin has shown that district judges are not always helpful to unrepresented claimants; this is a serious disadvantage as the ordinary person may be confused with the legal terminology and may therefore not understand the case. Finally, even if you are fortunate enough to win your case it does not necessarily mean that you will gain your money from the defendant. Statistics show that only sixty per cent of successful claimants actually received all the money that was awarded by the court. I shall now discuss the advantages and disadvantages of fast track cases.

Fast track Cases
Fast track cases deal with the cases where the value of the claim is between £5,000 and £15000. Fast track means that the court will set down a strict timetable for the pre-trail matters. This is aimed at preventing one or both sides from wasting valuable time and running up unnecessary costs. The hearing is limited to one day only, with usually only one expert witness allowed. So what are the advantages of fast track cases?

Advantages of Fast track cases
Obviously the first major advantage of fast track cases is the strict timetable set by the judge. This ensures that the case is dealt with in a logical manner to avoid distractions which may arise. The parties will be aware that there is an agenda in hand to help resolve the case as quickly as possible. Secondly, the costs are also kept low due to the hearing only being limited to one day. Thirdly, the introduction of strict timetables has lessened the delays a little. However, the total waiting time of 59 weeks is still a substantial amount of time to wait for a trial of what is meant to be a fast track case. I shall now discuss the disadvantages of fast track cases.

Disadvantages of fast track cases
Although the Woolf reforms have eased the delays a little, the total waiting time for the trial is still considerably long. This is a major disadvantage as people want to resolve the case as soon as possible. The limitation of one witness could also prove to be a disadvantage as it limits the evidence in your favour. The limitation of a one day triall hearing could also prove to be a disadvantage as there may not be sufficient time for your case to be heard. I shall now finally discuss the advantages and disadvantages of multi-track cases.

Multi-track cases
Multi-track cases deal with the cases where the value of the claim is over £15,000. If the case is started in the County Court it is likely to be tried there, though 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 can also set timetables according to the needs of the case. So what are the advantages of multi-track cases?

Advantages of multi-track cases
There are a few advantages of multi-track cases. Firstly, there is an opportunity for a pre-trial review which decides the timetable for the trial itself, who will give evidence at the trial and in what order, the content of the trial bundle (all the papers required for the trial) and the date by which it has to be lodged (delivered) at the court and the ‘trial estimate’ (time to be allowed for the trial). This is helpful for the parties as they will know what to expect from the trial and will know the procedure of the case before it begins. Multi-track cases are dealt with as soon as possible and if the claimant receives a judgement in their favour they are often entitled to court fees, compensation for lost earnings, travel expenses and cost of expert testimony. With this in mind it would be appropriate to consider the disadvantages of multi-track cases, which I shall now explain.

Disadvantages of multi-track cases
Unfortunately there are also some disadvantages of multi-track cases. Even after a case has been successfully resolved there may be more work ahead of the claimant. After receiving a judgement it may not be easy to receive it and some defendant’s avoid paying the judgement even after being ordered to do so. In such instances, the claimant can pursue a warrant of execution, an attachment of earnings, or a garnishee order so that the judgement will be enforced.
From summarising the advantages and disadvantages of each three tracks one can deduce that they all have a number of advantages and disadvantages, however they do seem to be running smoother than they did before the Woolf reforms in 1999. I now think it would be beneficial to scrutinise alternatives to the courts to discover if they have similar advantages and disadvantages.

Alternative Dispute Resolution
From my summarisation of the courts methods of resolving civil disputes I discovered that using the courts can be costly, in terms of both money and time. It is also worth remembering that going to court can be quite traumatic for the individuals involved and may not result in a satisfactory outcome. The English Legal System by Jacqueline Martin explains that a further problem is that court proceedings are usually open to the public and the press, so there is nothing to stop the details of the case being published in local or national newspapers. It is not surprising, therefore, that more and more people and businesses are seeking other methods of resolving their disputes. These alternative methods are referred to as ‘ADR’, which is an abbreviation for ‘Alternative Dispute Resolution’. There are many methods that can be used, ranging from very informal negotiations between the parties, to a comparatively formal commercial arbitration hearing.

Encouraging ADR
The Woolf report recommended more use of ADR. As a result the 1999 Civil Procedure Rules allow judges to ‘stay’ court proceedings. This is the postponement of the case to encourage the parties to try mediation or other ADR methods. Judges now have a duty to encourage ADR before litigation begins. ADR can be divided into four main categories these are: Negotiation, Mediation, Conciliation and Arbitration. I shall now discuss the advantages and disadvantages of each.

Negotiation – what is it?
Negotiation is an informal method of dealing with disputes between parties. Negotiation is usually conducted directly between the parties (or perhaps the parties’ solicitors). Negotiation is generally the first step and is designed to be a non-adversarial approach to solving disputes. The main aim of negotiation is to give both sides the opportunity to come to an agreement between themselves, however negotiation requires both parties to cooperate and this isn’t always possible.

Advantages of negotiation
There are numerous advantages recognised with the term negotiation. Firstly, negotiation is seen as the quickest method of ADR. This is because the two parties will simply negotiate between each other until they are eventually able to come to a resolution. If parties are able to cooperate and reach a resolution then negotiation may be a very quick method of solving a dispute. Secondly, negotiation is also seen as the cheapest method of ADR. This is because there are no court costs involved and the parties simply have to agree on a location and time when they are willing to meet each other. There are no costs for the winning party. However, there will be costs if the parties decide to involve a solicitor. Finally, negotiation has the advantage of being completely private, whereas everybody is allowed access to court cases. Furthermore there is the advantage of possible communications between the parties in the future.

Disadvantages of negotiation
Unfortunately negotiation also has several disadvantages which may put people off the idea of negotiating. Firstly, despite being recognised as the quickest method of ADR, this is not always the case. Negotiations have been known to have lasted for a period of months or even years, making them a lot longer than a court case. Secondly, negotiations do not always remain cheap. If legal representation is brought into the case then the case will become more and more expensive. It may also make the negotiation more complicated as solicitors will be less willing to compromise. Lastly, the decision between the two parties will not be legally binding unless drawn up in a contract; this may lead to a court case having to be arranged.


Mediation – what is it?
Mediation is slightly different to negotiation. This is because mediation involves the introduction of a neutral third party (the mediator). The mediator has the responsibility to consult with each party, find common ground between the parties and keep both parties focused on the dispute in hand. Mediation is offered by many companies known as Mediation Services. The cost of a mediator is approximately £1,000.

Advantages of mediation
Mediation has various advantages. Mediation is also cheaper than litigation; there may be the cost of the mediator, but this only a small proportion to the cost of the court which could reach 100,000. This alone may encourage a form of resolution to be agreed. Secondly, mediation is less formalised than litigation. Meeting places, times and dates are completely down to the two parties and the entire process is much less intimidating than a court case would be. This is beneficial to the ordinary person as they will find it easier to communicate with each other without having to be baffled by legal jargon. Mediation is also a lot quicker than a court case as there are no delays. Privacy is also another advantage of mediation. Mediation, similarly to negotiation is conducted between the parties and the neutral third party making the case private. Mediation can also help to preserve the relationship between the two parties. This is especially important in divorce cases as the parties will not want to cause too much hatred or emotional distress especially if there are children involved. Finally, the mediator will have experience of the particular dispute which will help the parties to reach a reasonable settlement between each other.

Disadvantages of mediation
Unfortunately, with advantages come disadvantages. Firstly, mediation is purely cooperation based. If the parties aren’t willing to cooperate then mediation will fail even with the help of a neutral third party. Furthermore, many people decide they haven’t got time to resolve their dispute so they feel there only option is to involve a solicitor. This will lead to spiralling costs and considerable delay. Finally there is the disadvantage of the decision not being legally binding. This is particularly problematic as the decision is not able to be forced through the courts (unlike arbitration) the parties may end up chasing each other for their compensation and this could prove to be fairly traumatic for both sides.

Conciliation – what is it?
Conciliation has many similarities to mediation in that a neutral third party is involved to help resolve the dispute; the main difference is that the conciliator will usually play a more active role. The conciliator is expected to suggest grounds for compromise, and the probable basis for a settlement. Unfortunately, as with mediation, conciliation does not necessarily lead to a resolution and it may be necessary to continue with a court action.

Advantages of conciliation
As conciliation is fairly similar to mediation, most of the advantages and disadvantages are the same. The main advantage of conciliation is again the cost. Conciliation is considerably less expensive than choosing litigation, this makes it a popular choice for companies and individuals who wish to attempt to settle a dispute. The only time when conciliation would become expensive is if one or both sides chose to involve solicitors. Another advantage of conciliation is the fact that the conciliator plays a more active role in the case this is a strong advantage as the conciliator will suggest possible outcomes which both sides will be happy with. A further advantage of conciliation is the informality of the case. This is particularly advantageous as the sides will feel more at ease and won’t be as stressed as they may be in a litigation case. Therefore, the case may be settled quicker than it would in a court case. The use of conciliation also helps to preserve a relationship between the sides which may be helpful in the future. For example, if it was the case of an individual verses a business; it may be beneficial if the individual is able to maintain a business link with the company after an agreement has been made. A final advantage is the issue of privacy. For example, a business may choose conciliation as they will not want the media to get hold of the story as the business may gain a bad reputation.

Disadvantages of conciliation

The disadvantages of conciliation don’t really differ from that of mediation. The main complication with conciliation is that it is once again a purely cooperation based case. Hence, if the parties are unwilling to resolve the dispute and cooperate with each other and the conciliator then the case will fall apart and may be referred to the courts. Furthermore, costs and lengthy time delays can be a contributing disadvantage with conciliation. There is no set time limit and therefore it is impossible to determine how long discussions may continue for. There are also added costs to the resolution process such as conciliator’s costs and also possible solicitor’s costs which may be used in the process on behalf of their client. Last but not least, I shall now discuss the advantages and disadvantages of arbitration.

Arbitration – what is it?
Arbitration is a more formal method of alternative dispute resolution. If both sides agree to go into arbitration then their case will be heard by a panel of up to three arbitrators. The parties themselves will chose who the arbitrator/s will be. The arbitrators are often experienced in the subject which the dispute is arising from. There are some informal sides whereby the date, time and place are decided by the parties. The main role of the arbitrator is to make a final decision upon the case and make a reward. Arbitration is normally found in three different ways. Firstly, Commercial Arbitration, commercial arbitration is where a company/organisation contains an arbitration clause (known as Scott v Avery Clause). If a contract has been signed which has a Scott v Avery clause then any complaint which may have been settled in the courts will have to go to arbitration instead. The second type of arbitration is Industrial Arbitration. Industrial Arbitration refers to most employment disputes. When an employment dispute claim is filed then a copy will be sent to ACAS who may request that the parties attempt arbitration so that they avoid the costs and disadvantages of litigation. The third type of arbitration is Consumer Arbitration. A large number of trade associations offer an arbitration scheme which can be used as an alternative to court proceedings (i.e. Litigation).

Advantages of Arbitration

Arbitration has various recognised advantages. Perhaps most importantly, the decision is in most cases final, this is unlike other methods of ADR and there is a greater possibility that a party will receive their compensation granted by the arbitrator. Another advantage is that the case will be heard by an experienced technical expert in the area of the particular dispute. This may ensure a fairer trial as the arbitrator will know the subject well. There is also the allowance of witnesses which may help a side state their case. As with all methods of ADR formality is also advantageous. Arbitration allows the sides to decide between themselves the time, place and date of when the arbitration hearing should take place. A further advantage is privacy. This will be more appealing especially if they don’t want their case publicised by the media.

Disadvantages of Arbitration

Arbitration has a number of disadvantages. Firstly, there is sometimes a bias which can be seen in Commercial Arbitration Hearings. Secondly, there is a possibility of an unexpected legal point arising from the hearing. This was the case in Donoghue v Stevenson. This case is one of the most famous cases in the legal history of the English common law system. The decision of the House of Lords founded the modern tort of negligence (delict in Scotland), both in Scots law and across the world in common law jurisdictions. The case originated in Paisley, Scotland, but the House of Lords declared that the principles of their judgment applied in English law. It is often referred to as "the snail in the bottle case". If this case had gone to arbitration the complainant would have lost because the arbitraitor would simply have stated that the person wasn’t in a contract with the company so they would have no viable claim. Therefore by going to court a new area of law was established which opened the door (of tort law) for furture complainants. Furthermore, there is limited rights of appeal from the arbitration hearing. This is probematic because if one side is unhappy with the reward then it is often difficult to appeal against the decision that has been passed.

Conclusion

To summarise, I can comprehend that using the courts to resolve a civil case has both advantages and disadvantages. The main problem with using litigation is the fact that it could potentially destroy future business relations (for example a company may have a dispute but still wish to trade with a major supplier).
However, if people choose they do not want to use the method of litigation there is always alternatives which can be seen in my discussion of ADR methods; these too have both advantages and disadvantages. Although these are a good idea to start with, most of them do not guarantee a final decision, therefore would it not be appropriate to say that courts are a tried and tested method of resolving civil and criminal cases and should be trusted by everyone?

Bibliography
The English Legal System by Jacqueline Martin
AS Law by Elliott and Quinn
Wikipedia
Class notes

[1] A no-win, no fee agreements have the rule that the losing party must pay the winner’s costs plus any other compensation.