Do you think that the courts offer the best means of solving disputes?

Written by Ruth Maltby (May 2007)

Introduction

In this essay I will analyse the advantages and disadvantages of the Civil Court System and compare them to the advantages and disadvantages of alternate methods of dispute resolution, comparing them and coming to a decision as to which is the best method of solving disputes.

I will also look at reforms that have taken place, and what they have suggested as to be the best means of solving disputes.

The Civil Court System

The civil court system is a method of solving a dispute between two parties, this process is called litigation. A judge will hear both sides of a case and then decide which one made the best claim and rule accordingly, awarding damages or another type of settlement. The civil court system has a claimant and a defendant, both of which will try to prove their case to the judge to win and gain compensation type rewards.

The civil court system hears many different types of civil cases, including claims in tort, breaches of contracts, disputes over wills and family matters like divorce. There are two main courts that hear civil cases, these are the county court and the High Court. There are also a few civil cases heard in the magistrates' court.

Cases for trial in the two main civil courts are allocated to one of three 'tracks': the small claims track for claims up to £5,000, the fast track for claims up to £15,000 and the multi track for claims over £15,000.

There is also a clear appeals route within the civil courts, appeals from the county court can be heard by the Divisional court or the High court, appeals on matters of fact and law are dealt with by the Court of Appeal. Appeals from the High Court usually go straight to the Court of Appeal, however in some rare cases there can be a 'leapfrog' appeal directly to the House of Lords.

Alternative Dispute Resolution

There are several alternatives to taking action in the civil courts which also aim to get compensation for the claimant. Alternative dispute resolution is when the two parties will try to resolve their disputes by talking to each other or will hire a neutral third party to help their discussions or to make a binding decision for them. The main alternative to the civil courts are: negotiation, mediation, conciliation and arbitration. Also, in certain types of case will be heard in specialist forums called tribunals instead of the ordinary courts.

Negotiation is where the parties themselves try to resolve the dispute with or without help from a lawyer, it is arguably the easiest form of ADR. If one of the parties refuses to compromise then negotiation will be unable to work, it requires the parties to make a decision among themselves.

Mediation is where the parties resolve the dispute with the help of a neutral third party. There is great emphasis on getting the parties to reach a compromise and the mediator (the neutral third party) will consult both parties and try to find common ground. Again this is only suitable if the two parties are willing to compromise. The aim of mediation is to lead the two parties to a settlement and to keep their relationship in tact. Companies often used mediation services.

Conciliation is quite similar to mediation, but there is a crucial difference in that the third party will play more of an active role is reaching a solution. The conciliator will suggest compromise and the possible basis for a settlement. Conciliation is not binding unless a contract is drawn up and agreed to, also it does not always lead to a resolution and it may be necessary for a court case to follow afterwards

Arbitration is where the parties agree to let an independent person make a binding decision for them. Many contracts will stipulate that in the event of a dispute, the matter must be settled by arbitration called a Scott v Avery clause, this is often the case for holiday companies not wishing to tarnish their reputations by dealing privately with disgruntled customers.

Tribunals are specialist forums set up to deal with certain types of dispute, if there is a tribunal set up for a particular type of dispute then this must be used instead of the civil courts. There are three main types of tribunal: tribunals dealing with disputes between an individual and a government department (e.g. Social Security Appeals Tribunal), tribunals dealing with disputes between individuals (e.g. Employment Tribunals) and domestic tribunals run by people responsible for certain professions (e.g. General Medical Council). A tribunal is normally comprised of three people, a lawyer and two lay people.

Advantages of the civil court system (litigation)

There are some strong arguments for the civil court system, one major point is that the civil courts system is one of the oldest systems and has lasted, suggesting that it is working. Also, the judge in the case is a legal expert, having previously been a solicitor or barrister and then receiving training. Therefore they are the best person to deal with and solve complex legal points.

Another major advantage of the civil courts system over ADR is that cases in the civil court are open to the public, most having a public gallery. This enables justice to be seen to be done. Also, the system of precedent brings a degree of certainty to the law as the courts have to follow past decisions if the facts are very similar, so the law can be seen to be consistent in this way.

The civil court system has different tracks available for different cases, meaning that using the fast-track, cases can be pushed through relatively quickly, despite what is said about the delays in the civil courts. Also, there is a structured appeal system within the civil court system, which you may not be able to access with ADR. The appellate courts allow any decision to be disputed, the Queen's Bench Divisional Court is where decisions from the Queen's Bench division of the High court and decisions from tribunals to be disputed. The Chancery Divisional Court deals with tax appeals and decisions made by the County court about bankruptcy. The Family Divisional Court deals with disputes against decisions about children. Appeals can also move to the Court of Appeal and then to the House of Lords. There are three tiers of appeal courts which are accessible.

If the case in the civil court is won, then the losing party will have to pay the costs incurred. This is good because the guilty party has caused the claimant to go to court and incur costs as well as causing inconvenience. This is the case in all of the civil courts apart from the small claims court, where legal fees cannot be claimed back from the losing party.

Advantages of Negotiation

Negotiation is the quickest way to settle a dispute as the two parties talk amongst themselves, in private and usually without the use of solicitors. This keeps the costs of negotiation very low, in fact free if no lawyers are used at all. Another advantage of negotiation is that it can help parties to communicate and therefore can help relationship remain intact. This is particularly important in cases of divorce where there are children, as it helps the parents to remain on speaking terms. If negotiation doesn't immediately work, a court case can be pursued and even then an out of court settlement can be made before the case comes to trial. In fact, most lawyers will continue to negotiate the case outside of court up until the actual case in an effort to try and prevent a court hearing being needed.

Advantages of Mediation

Meditation is a relatively cheap form of ADR, although it is not quite as cheap as negotiation as a neutral third party is used, and will be paid for. However, only one person is needed to help aid discussion between the two parties, and this person will be an expert at finding common ground between the two and encouraging compromise. This will speed the process up and once the final decision is made, either party can opt out of it, as it is not legally binding unless a contract is made. A court case can follow if necessary.

Advantages of Conciliation

Conciliation is similar to mediation with the use of a neutral third party, however the third party (the conciliator) takes a more interventionist approach, suggesting possible solutions that can help the parties reach a settlement. Again there is only one extra person needed so costs are low. Also, other forms of ADR or a court case can be used afterwards, if it is unsuccessful.

Advantages of Arbitration

Arbitration is a slightly more expensive form of ADR, however it remains cheap in comparison to the civil court system. Arbitration can be quite informal, making it easier for the parties to understand and feel comfortable with. The parties also get to choose their arbitrator, unlike the civil courts procedure, this means that the arbitrator can be a specialist in the area being debated between the two parties. Meaning that the arbitrator can base his decision on actual knowledge of the subject, where as a judge in a court has to base their verdict on what has been told to them. Arbitration does not have to be used in conjunction with lawyers, meaning that the cost can be kept down in that area. The procedure is fairly flexible as well, because times and dates can be chose as the arbitrator is chosen, this is not possible in the courts system where a trial date is set for you. Arbitration is also quicker than the civil courts as, if the arbitrator is willing and able, the case can be heard as soon as possible.

Advantages of Tribunals

Tribunals are quicker and cheaper than proceedings in the civil courts, legal representation often slows the proceedings down, therefore in tribunals it is discouraged by both parties being responsible for their own costs. Tribunals are also useful in relieving pressure on the civil courts. The lay people sitting on a tribunal often have expert knowledge in the field of the case they are hearing and are therefore more capable of making an informed decision. Tribunals are also less formal than the civil courts system as the procedure is much more simple, also tribunals are not hampered by precedent. Past decisions are however considered, but they do not always have to be followed.

Disadvantages of the civil courts system (litigation)

The main criticisms of the civil court system involves cost and time. It is a very expensive procedure to go through as cost build up even before the case reaches the courtroom. Legal representation is needed for all cases, unless they are in the small claims procedure. Legal representation must be paid for in the form of first a solicitor and then usually a barrister to take the case to court. Complex cases involving large sums of money can take years and the cost increases.

The second main criticism of the civil courts system is the time that cases take. Litigation is a very slow process, it can take years to get to court and years fighting the case especially as the decisions of many cases are appealed.

The procedure in the civil courts is very formal and often confuses people and puts them off using them. Cases can also be very complex and the public just does not understand them.

Civil cases can ruin relationships between the parties because the decision is made by the judge for them, they cannot talk about it. A working relationship is often necessary for people taking each other to court, for example an employee suing their employer may wish to return to work and parents divorcing may need to still speak to arrange visits with their children.

Even if a case is won in the civil courts the money is not guaranteed all in one go. The losing party will be ordered to pay the money to the claimant, however they can only pay it at a rate that they can afford. So, the money spent taking the case to court and the money that is owed in compensation may not be seen by the winner for a long time.

There is also no flexibility in when the case will be heard, possibly causing inconvenience for the parties. Also, the cases are open to the public, possibly causing embarrassment and allowing the media to gain stories from a high profile case.

Disadvantages of Negotiation

Negotiation has few real disadvantages apart from the fact that it will only work if both parties are willing to cooperate and compromise. If one party will not, the case may require another form of ADR to be used, or a civil case to be brought. Meaning that time and effort will have been spent on negotiating pointlessly. Either party can change their mind at any point if no contract is signed, it is an opt-out situation.

Disadvantages of Mediation

Not much money is spent on hiring a mediator, however if the parties cannot agree then the time and expense has been wasted. If there is no common ground between the parties, and neither will compromise, again this form of ADR will be ultimately unsuccessful.

Disadvantages of Conciliation

Conciliation, being very similar to mediation will have similar problems. A common ground is essential for an agreement to be reached, and time and effort will be wasted if no agreement is reached. Decisions are not compulsory if no contract is drawn up.

Disadvantages of Arbitration

Arbitration is very expensive compared to the other forms of ADR as it involves a neutral third party, often a professional or expert in the particular field, to be used. Their service can cost a lot as the professional possesses a skill that is required by the parties. Also, if the parties require a more formal hearing then this will cost even more money, especially if lawyers and witnesses and evidence are used. This will not only increase fees, but the time taken for the case to end.

Also, there is very little opportunity for appeal as the parties chose the arbitrator themselves and when they make their mind up the decision often stands and cannot be changed.

The Woolf Reforms

Lord Woolf changed the civil legal system in 1996 through a list of recommendations in his Access to Justice report, in which he stated that in a civil claim certain things have to be done. For example, it must be just, fair, offer procedures that are cost effective, , fast, accessible, understandable, effective and organized. He also criticized the civil courts system as being unequal, slow, expensive and complicated.

Lord Woolf proposed that the small claims procedure be increased to included claims up to £3,000, simple cases up to £10,000 must be allocated to the fast track and all claims over £10,000 must be allocated to the multi-track.

He also proposed that for all cases, the parties must have first tried to use ADR, cases may be stopped at court and referred to ADR until it has been tried. This is in an effort to reduce the congestion of cases going to the civil courts unnecessarily.

Judges, he said, must become 'case managers' to prevent the cases from taking such a long time to get through the courts. This will involve the use of strict timetables to prevent the courts from getting 'clogged'.

Court documents must also be made simpler and accessible to unqualified people

The civil procedure rules

The new civil procedure rules were brought into effect in 1999, these use much simpler language and the vocabulary used in the courts has changed.

The overriding objective of the civil procedure rules (CPR) is to allow the courts to deal justly with cases, the first rule states that:

“These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.”

Meaning that the court should endeavour to make the paties equal, saving excess expense, ensuring the case is dealt with quickly and efficiently.

Also, there are three main aspects to the reforms: judicial case management, pre-action protocols and alternative to going to court.

Conclusion

In conclusion, there are many advantages and disadvantages to both the civil court system and ADR. It cannot be said that the courts are better all round to ADR methods, but in certain circumstances, for example if the parties simply cannot compromise, then court proceedings may be more effective. However, in other circumstances ADR, being cheaper and quicker, may be more appropriate.

Therefore, it can be concluded that following the Woolf Reforms and the new civil procedure rules, a mixed approach should be taken. This is where ADR is tried first, with a civil case following if the ADR is unsuccessful.

References:

Martin. J - 'The English Legal System'

Routledge & Cavendish - 'English Legal System Lawcards series'

Cavendish - 'AS Level Law Lawcards series'