Flashcards
Chapter 1: Civil Litigation and the Courts
Flashcards do conjunto (31)
- 1What is litigation?Litigation is the means by which civil disputes are resolved through the courts (despite many disputes settling before proceedings are issued)
- 2What is the mantra underpinning the Civil Procedure Rules 1988?"Litigation as a last resort".
- 3What were the Civil Procedure Rules 1988 designed to do?They were designed to provide a swift, streamlined system of civil litigation.
- 4Explain the civil courts.The main civil courts in England and Wales are the County Court and the High Court of Justice. In order to identify the appropriate court for the issue, conduct and hearing of particular proceedings, factors such as case value are important.
- 5What cases does the County Court deal with?The County Court deals with the more straightforward cases including:
1. Claims for money only, whether it be for a specific debt or for damages, where the anticipated value of the claim is £100,000.00 or less.
2. Personal injury claims for less than £50,000.00. - 6Is there a difference in issuing proceedings for money-only claims?Money-only claims are started under CPR Part 7 and must be issued centrally in the Court Court Money Claims Centre. Contested claims are later transferred to a name County Court hearing centre, primarily to assist the defendant.
- 7What cases does the High Court deal with?Only the more complex cases are dealt with in the High Court.
- 8What are the three divisions of the High Court?1. Queen's Bench Division - This covers actions in contract and tort.
2. Chancery Division - This is used for disputes over wills, inheritance, company law and bankruptcy.
3. Family Division - This is where family proceedings, including adoption. - 9Judicial functions in the High Court sitting in London are shared between who?1. Masters - who deal with interim applications and case management matters; and
2. High Court judges - who deal primarily with trials but also with interim applications and case management as appropriate. - 10Who are the other officials in the courts?1. Court manager.
2. Ushers.
3. Bailiffs and enforcement officers. - 11What is the role of a court manager?The court manager is in charge of a court office. Documents sent to the court (particularly statements of case and application to the court) are addressed to the court manager. He will be supported by the counter staff who you will meet when you issue proceedings at court.
- 12What is the role of an usher?Ushers are officials present when the court is sitting. They sometimes wear legal robes. They perform functions like noting who is in attendance before hearings, swearing witnesses at trials and ensuring that lists of cases being heard in a single session are dealt with efficiently. When you arrive at court you will need to report to the usher.
- 13What is the role of a bailiff or enforcement officer?Their roles include serving court documents and enforcing court orders and judgments.
- 14What are the three stages of litigation?1. The pre-action stage;
2. From issue of proceedings through to judgment; and
3. Steps taken after judgment. - 15What is the most important source of information on the procedural law both in the High Court and the County Court?Civil Procedure Rules 1998.
- 16Briefly explain how the Civil Procedure Rules 1998 are structured.CPR are divided into Parts, with each Part dealing with one aspect of civil procedure. Most of the Parts are supplemented by Practice Directions which provide more detailed information on how the rules work. The Practice Directions usually have reference numbers that are the same as the relevant Part of the Civil Procedure Rules 1998.
- 17What is the overriding objective of the Civil Procedure Rules 1998?The overriding objective is set out in r1.1. The aim is to enable the court to deal with cases justly and at proportionate cost.
- 18What are the six objectives the court should seek to achieve when dealing with cases to achieve the overriding objective?1. Ensuring parties are on an equal footing.
2. Saving expense.
3. Dealing with the case in ways that are proportionate to:
A. the amount of money involved;
B. the importance of the case;
C. the complexity of the issues; and
D. the financial position of each party.
4. Ensuring the case 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. - 19What does CPR r1.2 state?This provision reinforces the importance of the six objectives. It states the court must give effect to the overriding objective when making procedural decisions.
- 20What does CPR r1.3 state?This provision reinforces the importance of the six objectives. It requires the parties to assist the court in furthering the overriding objective.
- 21The court, when applying the overriding objective, looks carefully at the facts of each case and the conduct of the parties. What is the result of this?As the courts look carefully at the facts of each case and the conduct of the parties, this means each case is dealt with individually, ensuring a non-technical, flexible approach, but always in the context of achieving cost-proportionate litigation.
- 22Which provision states the court must take an active role in managing current cases?CPR r1.4 states the court must take an active role in managing current cases. This gives practical effect to the overriding objective.
- 23Active case management primarily happens in defended cases (where the defendant has been served with proceedings and has filed a defence). True or false?True. It includes:
1. Encouraging the parties to co-operate with each other in the conduct of the proceedings;
2. The court identifying the issues at an early stage and deciding promptly which issues need to be fully investigated and dealt with at trial;
3. Encouraging the parties to use alternative dispute resolution procedures if appropriate;
4. fixing timetables and giving directions to ensure that cases progress quickly and efficiently; and
5. keeping costs under control and taking into account whether the benefits of taking any particular step justify the cost of taking it. - 24What is the difference between the civil courts and criminal courts?The criminal courts are the Magistrates Court (where less serious cases are heard and initial hearings for serious cases) and the Crown Court (where most serious offences are dealt with). These courts determine the guilt of people accused and decide on punishment. The court must be sure beyond reasonable doubt as to guilt. The civil courts deal with disputes (whether through a contractual breach or negligence).
- 25Who is the claimant and who is the defendant?The person or legal entity bringing the claim, whose rights have been affected, is the claimant. The party responding to the case brought against him is the defendant.
- 26What is the process by which a civil case progresses through the system called? Briefly explain the system.This is called civil litigation. The court determines whether the case should succeed and, if so, provides a remedy. The aim is to put the wronged party into the position in which he would have been had there not been a breach of duty or contract. The court needs to be satisfied on the balance of probabilities that a party has proved its case (i.e. more likely than not). This is called the civil standard of proof. The burden of proof lies with the claimant (who must provide evidence to prove their claim).
- 27Detail the types of disputes, the types of claim and the purpose of damages for contractual disputes.Types of dispute include goods and services supplied are defective (breach of contract), non-payment of monies due (debt claims) and failure to perform the contract (e.g. goods not delivered) (commercial disputes). The purpose of damages for a contractual dispute is to put the claimant in the position he would have been in had the contract been performed correctly.
- 28Detail the types of disputes, the types of claim and the purpose of damages for claims in tort (negligence).Types of dispute include road traffic accidents, trips and slips on the highway or private property, accidents at work or mistakes made by medical or other professionals. These types of claims are negligence (i.e. a duty of care is owed by one party to another, the duty is breached and this causes the other party to suffer loss (financial or otherwise)). The purpose of damages of a negligent claim is to put the claimant in the position he would have been in had the negligent act nor occurred.
- 29Detail the types of disputes, the types of claim and the purpose of damages for claims in tort (nuisance).The types of dispute include noise, tree roots encroaching and escape of water onto another's property. The type of claim is nuisance (i.e. where use or enjoyment of land is repeatedly inferred with by another landowner). The purpose of damages of a nuisance claim is to put the claimant in the position he would have been in had the nuisance not occurred.
- 30Explain Lord Justice Jackson's 2017 review on civil litigation.Lord Justice Jackson recommended a new intermediate track be created for claims up to £100,000.00 which could be tried in 3 days or less, with no more than 2 expert witnesses giving oral evidence for each side. For this track (and those falling within the fast track), grids would be established setting out fixed recoverable costs. These costs could be increased or decreased depending upon the stage at which the case finished and the matter's complexity. The concern is that the recoverable costs would not match those expenses. Although this proposal has the benefit of security for the parties.
- 31Explain the test for a new Online Court.This was recommended by Lord Justice Briggs in 2017. Although initially invitation only, in future the Online Court will be mandatory for money claims below a certain value (likely £25,000.00). A key aspect of the Online Court is that it involves 3 stages for running a case:
1. An automated triage stage where claimants are giving access to basic legal advice and assistance in articulating their claim;
2. A conciliation stage (taking forms including telephone, online or face-to-face mediation); and
3. A determination stage for cases which haven't settled dealt with by telephone or video hearing, with all parties present or by a judicial officer without a hearing.
This would enable litigants in person to feel more confident.
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- Level 3 Civil Litigation FlashCards sobre Chapter 1: Civil Litigation and the Courts, criado por Emily Greig em 12-11-2018.
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- Emily Greig
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