CIVIL PROCEDURE IN ENGLAND
AND WALES
UNIT 9
Preview
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Civil vs. criminal procedure
Adversary procedure
History
Major problems
Lord Woolf’s reforms
Civil proceedings
Civil vs. Criminal law
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Civil Law: laws relating to people’s rights and to
agreements between individuals; disputes between
individuals; action is taken by the aggrieved party.
Criminal Law: law relating to crime: illegal conduct for
which a person may be prosecuted and punished by the
state; offences which, though committed against an
individual, are regarded as harmful to society as a
whole; action is taken against the wrong-doer in the
name of society.
ADVERSARY PROCESS
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Type of litigation, characteristic of the common
law: parties are set up against each other, as if
they were opponents in a battle.
The parties in a civil case: equally matched
opponents, responsible for preparing their own
side of the case and finding their witnesses and
evidence, with little or no involvement by the
court
The function of the judge: to hear both sides
and pass judgment
Standard of proof
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Criminal cases: beyond reasonable doubt
Civil cases: on the balance of probabilities
Standard of proof: criminal case
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The prosecution must make the court
sure that the defendant is guilty.
If the court is not sure, it must acquit the
defendant, even if it finds that he was
probably guilty
Standard of proof
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It is always easier to make someone else
believe that something is probably so than
to make them sure of it; it is easier to
prove a civil case than it is to prove a
criminal case
Civil vs. Criminal law
Civil cases
Criminal cases
Purpose
To enforce rights
To decide if criminal law
has been broken
Person starting case
Injured party: claimant
The State: Crown
Prosecution Service:
prosector
Courts
County court
High Court
Magistrates’ courts
Crown Court
Standard of proof
On the balance of
probabilities
Beyond reasonable
doubt
Persons deciding
judge
Magistrates; Crown
Court: judge, jury
decision
Judgment for the
claimant (or defendant)
Guilty or not guilty
Powers of the court
Damages, injunction
Prison, community
sentence, fine, discharge
History
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End of 18th century: civil matters dealt
with by several different courts
Separate, often overlapping jurisdictions
Largley centralised in London
No coordination, inefficiency,
incompetence, delays
Litigation in the higher courts:
extravagance which could be afforded
only by the very rich
Charles Dickens, Bleak House
(1853)
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“Jarndyce v. Jarndyce drones on. This
scarecrow of a suit has, in the course of
time, become so complicated that no man
alive knows what it means. The parties to
it understand it least; but it has been
observed that no two Chancery lawyers
can talk about it for five minutes without
coming to total disagreement as to all the
premises.
Charles Dickens, Bleak House
(1853)
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Innumerable children have been born into
the cause; innumerable young people
have married into it; innumerable old
people have died out of it. Scores of
persons have deliriously found themselves
parties in Jarndyce v. Jarndyce, without
knowing how or why; whole families have
inherited legendary hatreds with the suit.
Charles Dickens, Bleak House
(1853)
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The little plaintiff or defendant, who was
promised a new rocking horse when
Jarndyce v. Jarndyce should be settled,
has grown up, possessed himself of a real
horse, and trotted away into the other
world. Fair wards of court have faded into
grandmothers; a long procession of
Chancellors has come in and gone out…
Charles Dickens, Bleak House
(1853)
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…there are not three Jarndyces left upon
the earth perhaps, since old Tom Jarndyce
in despair blew his brains out at a coffeehouse in Chancery Lane; but Jarndyce v.
Jarndyce still drags its dreary length
before the Court, perennially hopeless.”
The Civil Justice Review (1988)
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Delay in litigation “causes continuing
personal stress, anxiety and financial
hardship to ordinary people and their
families. It may induce economically
weaker parties to accept unfair
settlements. It also frustrates the efficient
conduct of commerce and industry”
CURE
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Proposals for a system of interventionist court
control of case progress with time limits,
reminders being sent to solicitors and a penalty
for non-compliance
A significant move towards judicial
interventionism to a degree unknown so far to
the English legal system
Lord Woolf’s Reforms (1999)
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The system: “in a state of crisis…a crisis
for the government, the judiciary and the
profession”
Lord Woolf’s Reforms (1999)
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“Without effective judicial control…the
adversarial process is likely to encourage an
adversarial culture and to degenerate into an
environment in which the litigation process is
too often seen as a battlefield where no rules
apply. In this environment, questions of
expense, delay, compromise and fairness have
only a low priority. The consequence is that the
expense is often excessive, disproportionate and
unpredictable; and delay is frequently
unreasonable”
Costs
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A successful claim by a supplier of fitted
kitchens to stop a ₤ 10,000 a year
employee from taking up a job with a
competitor cost the employer ₤ 100,000
A divorced wife had to pay ₤ 34,000 in
costs for a judgement that awarded her ₤
52,000 of the value of the family home
The legal aid budget rose from ₤ 426
million in 1987 to ₤ 1,526 million in 1997
Civil Procedure Rules (CPR)
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Before the CPR, it was up to the parties
and their legal advisers to progress the
case, decide what issues they wanted to
have heard, and to present evidence
Under the CPR: the judge manages the
case: sets the timetable, controls and tries
to simplify the issues to be decided; puts
limits on the evidence which may be called
at the trial
Civil Procedure Rules (CPR)
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The court has ‘an overriding objective to deal
with cases justly’ by:
Ensuring that the parties are on ‘equal footing’
Saving expense
Dealing with cases in ways which are
proportionate to the amount of money involved,
the complexity of the issues, and the financial
position of each party
Ensuring that the case is dealt with promptly
and fairly
Plain English
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Plaintiff > claimant
Writ > claim form
Discovery > disclosure
Statement of claim > particulars of claim
SETTLEMENT
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Most civil cases are settled out of court, trial
being the “ultimate weapon” in the battle
Of those cases where proceedings are
commenced, only a small percentage come to
trial
Most civil disputes are settled between the
parties, usually by their solicitors before
proceedings have started
The monetary level of settlements is lower than
damages awarded by courts
The proceedings
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Claim form states the nature of the claim
and the remedy; must be served upon the
defendant
The defendant may admit the claim and
pay the full amount
If a defendant wishes to defend the
claim he must file a document with the
court setting out his answer to the claim;
he may file a counterclaim
Default judgement
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If a defendant does not reply to the claim,
the claimant may obtain a default
judgment . The court will award
judgment in his favour without the trial
Summary judgment
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If a defendant wishes to defend the claim,
but he has no real defence to it, the court
may decide the claim without a trial by
giving summary judgment
The court may give summary judgment
against the claimant if it appears that his
claim has no reasonable prospect of
succeeding
The three tracks
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The small claims track: for claims of up to ₤
5,000; claims dealt with swiftly and informally by
a District Judge
The fast track: amount does not exceed ₤
15,000, and the trial is not likely to last longer
than 1 day; heard by a District Judge or Circuit
Judge
The multi-track: complicated and valuable
claims; heard by a Circuit Judge or High Court
Judge
HIERARCHY OF CIVIL COURTS
Supreme Court
Supreme Court Judges
COURT OF APPEAL
CIVIL DIVISION
Lords Justices of Appeal
HIGH COURT
CHANCERY DIVISION
Tax, probate, bankruptcy,
property, trusts
Patents Court, Companies
Court
FAMILY DIVISION
Divorce, matrimonial
property, guardianship
COUNTY COURT
Circuit judges, district
judges
QUEEN’S BENCH
DIVISION
Contracts, tort etc.
Admiralty Court
Commercial Court
COUNTY COURT OR HIGH COURT?
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The County Court should try:
Any action worth less than ₤ 15.000
The High Court should try:
Actions over ₤ 15,000
Methods of dispute resolution
alternative dispute resolution/litigation
Negotiation
Parties themselves
Mediation
Parties with help of neutral third party
Conciliation
Parties with help of neutral third party
who plays an active role in suggesting
a solution
Arbitration
Parties agree to let third party make a
binding decision
Litigation
Parties go to court and a judge
decides the case
Civil cases
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Tried by judges alone
Juries try civil cases when the action
concerns the liberty of the subject or
his/her reputation
Liberty of the subject
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Example: when a claimant claims
compensation against the police for
assault and wrongful imprisonment
Reputation
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Example: the claimant claims damages for
defamation of character . Where s/he
alleges that unpleasant and untrue things
have been written or said about him/her
that have damaged their reputation
Jury trials in defamation cases
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Jurors – no experience in assessing damages;
sometimes make extraordinarily high awards:
Sonia Sutcliffe, the wife of Peter Sutcliffe (the
serial killer known as the ‘Yorkshire Ripper’)
successfully sued the magazine Private Eye for
defamation – it had been suggested that she
might have known sth of her husband’s activities
– the jury awarded her ₤ 600,000 damages;
reduced on appeal to ₤ 60,000
Jury trials in defamation cases
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In 2001 the Court of Appeal set aside
altogether a jury award of £85,000
damages to the footballer Bruce
Grobelaar. The goalkeeper had sued the
Sun newspaper for defamation after it had
accused him of accepting corrupt
payments to ‘throw matches’; the Court of
Appeal held the jury had reached a
‘perverse decision’, and reversed the
decision.
Jury trials in defamation cases
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This unprecedented ruling was criticised
as undermining the jury system. The case
went to the House of Lords. The Law
Lords allowed this appeal; they did not
disturb the jury’s finding that Grobelaar
had been defamed, but reduced the
damages to a nominal sum of £ 1.
Enforcing court orders in civil cases
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In the case of an order to pay money, the
defendant’s property can be seized and
sold, or there may be an order declaring
him bankrupt
If a person disobeys any court order, s/he
will be guilty of contempt of court;
punishment: fine or committal to prison
Contempt of court
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In 1995 a woman of 68 came before the
court
She had committed a nuisance by
throwing large amounts of bread around
the house to feed the birds, which flocked
to her home
This became a health hazard
Despite several warnings by the court that
her behaviour was unlawful, she persisted
Contempt of court
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The court granted an injunction ordering
her not to do this
She disobeyed the order
Committed to prison for contempt of court
After a few days apologized to the court
and promised not to do it again
The court decided that she had ‘purged
her contempt’ and she was released
APPEAL
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Either party or both may appeal; even the
prevailing party may appeal if they want a larger
award than was granted
Appeals from the High Court and county courts
are heard by the Court of Appeal (Civil Division)
A case which has been dismissed by the Appeal
Court can, with the permission of the Appeal
Court, be taken to the Supreme Court; if an
important legal principle is at stake, the
Supreme Court can give permission for an
appeal even if the Appeal Court has not done so
APPEAL
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The appellate court can:
Affirm the judgement
Reverse (change a decision to the
opposite one)
Remand: send the lawsuit back to the
lower trial court to address an unresolved
issue, or possibly for a whole new trial
Summary
Courts dealing with civil cases
County Court
High Court
Different tracks for claims
Small claims
Fast track
Multi-track
Problems of civil cases
Cost
Delay
complexity
1999 reforms
Encourage use of alternative dispute
resolution
Simpler forms and language
Small claims limit: £ 5,000
Fast track: £ 5,000- £15,000
Multi-track: over £15,000
Judges responsible for case
management
Strict timetables
Key facts
Remedy
Effect
Comment
Damages
Defendant must pay a
Special d.: specific
certain amount of money amounts
General: for pain and
suffering
Nominal: small amount,
no actual loss
Exemplary: to punish
defendant
Injunctions
Order defendant to do or Discretionary remedy;
not to do sth
court may decide that
damages are sufficient
Specific performance
Orders defendant to
complete contract
Discretionary remedy;
rare
Recission
Puts parties back to precontractual position
Discretionary remedy
Rectification
Alters document to show
Discretionary remedy
Activity
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Selina bought a washing machine for L350. It
has developed several minor faults including a
leak. Selina complained to the store where she
bought the machine. They offered to replace it
but refused to refund her money. Selina wants
to return the machine and claim the cost. Advise
Selina as to which court she must start
proceedings in and to which track the case is
likely to be allocated
Activity
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Tyler was seriously injred when a car
mounted a pavement and hit him as he
was waiting for a bus. He estimates his
claim as being for about L85,000. Advise
him as to which court he may commence
his claim in, the track to which it will be
allocated
Activity
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Wallace wishes to sue a local newspaper
for defamation. He is prepared to limit his
claim to L20.000. Advise him as to which
court he may commence his claim and the
track to which it is likely be allocated
SUMMARY: claim, defendant,
judgement, plaintiff, probabilities.
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A civil action in the county court or the High
Court is started by the ___(claimant) serving
documents, which contain details of a__, on the
defendant. Should the__ defend the action, the
court is informed; relevant papers are prepared,
circulated to all parties, and the case proceeds
to trial and __. A decision in civil cases is
reached on the balance of ___.
Key
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A civil action in the county court or the High Court is
started by the plaintiff (claimant) serving documents,
which contain details of a claim, on the defendant.
Should the defendant defend the action, the court is
informed; relevant papers are prepared, circulated to all
parties, and the case proceeds to trial and judgement. A
decision in civil cases is reached on the balance of
probabilities.
action, costs, delays, litigation,
settled
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The court also decides the expenses of the__, and the
loser is usually expected to pay both his own and the
opponent’s __. Civil __ can be complicated, expensive
and subject to great delay in the High Court. It is
therefore advisable for disputes to be __out of court, or
before the case actually comes to trial. Attempts are
being made to reorganize civil law procedures because
of concern about the efficiency of the system, with its
__, expense and complexity.
Key
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The court also decides the expenses of the action, and
the loser is usually expected to pay both his own and the
opponent’s costs. Civil litigation can be complicated,
expensive and subject to great delay in the High Court.
It is therefore advisable for disputes to be settled out of
court, or before the case actually comes to trial.
Attempts are being made to reorganize civil law
procedures because of concern about the efficiency of
the system, with its delays, expense and complexity.
LEGAL TERMS
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Action a proceeding heard in a civil court
allowing an individual to pursue a legal
right;
to take legal action to begin a legal
case;
to defend an action to appear in court
to state your case when accused of
something
LEGAL TERMS
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Claim an assertion of a legal right
potraživanje, tužbeni zahtjev
Counterclaim in a court, a claim by a
defendant against whom a claimant is
bringing a claim. The counterclaim is
included in the same proceedings and
statement of case as the original claim
protutužba
LEGAL TERMS
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Discovery of documents disclosure of each
party's documents to the other before a hearing
starts in the civil courts (Since the new Civil
Procedure Rules in 1999, disclosure)
To file to send a document to court (When a
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and served in 14 days the defence must be
sent to court and to the other party within 14
days
Podnijeti zahtjev sudu
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defendant is served with particulars of claim he
can file a defence); the defence must be filed
Legal terms
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Injunction a court order telling someone
to stop doing something, or not to do
something
Sudski nalog
LEGAL TERMS
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Judgment by default a judgment
without trial against defendant who fails
to respond to a claim
Presuda zbog izostanka, kontumacijska
presuda
Judicial review a review by a higher
court of the actions of a lower court
Sudska kontrola
Legal terms
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Plaintiff person who starts an action
against someone in civil courts (Since the
introduction of the new Civil Procedure
Rules in April 1999, claimant)
Tužitelj u građanskom postupku
LEGAL TERMS
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Pleadings documents setting out the claim of
the claimant or the defence of the defendant, or
giving the arguments which the two sides will
use in proceedings (Pleadings must be
submitted to the court when the action is set
down for trial)
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podnesak
Probate legal acceptance that a document,
especially a will, is valid
Sudska ovjera oporuke
LEGAL TERMS
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Reverse to change a decision to the opposite
one
Poništiti presudu
Serve to give someone a legal document that
requires them to do something (They were
served notice to quit the premises in two
months' time);
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Uručiti, dostaviti
Sue to start legal proceedings against someone
to get compensation for a wrong
Pokrenuti postupak
Advise the people in the following
situations:
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Thomas has been badly injured at work
and alleges that the injuries were the
result of his employer’s failure to take
proper safety precautions. He has been
advised that his claim is likely to be worth
₤ 200,000. Advise him as to which court
or courts could hear his case.
Activity
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Look up court forms such as claim form on
the website: www.courtservice.gov.uk
Also use that website to find guidance on
starting cases in the County Court
Activity
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Use the Internet to look up cases in which
there has been an appeal to the Supreme
Court and which are waiting for the appeal
to be heard. This can be found on:
www.supremecourt.gov.uk/news/judgments.html