#3663 - Processes And Mechanics - Civil Procedure

Processes and mechanics

Malleson and Moules: The Legal System

The civil justice process

Introduction

Trend towards streamlining the civil justice system through the redeployment of cases from the higher to the lower courts, reducing the right of appeal and encouraging the use of ADR processes.

What is the goal of the civil justice system – should be a last resort designed to encourage settlement out of court, OR an accessible system for processing cases quickly and cheaply?

Tensions between the public and private nature of the system and overlap between the aims and procedures of the civil and criminal systems.

Distribution of workload

The civil court structure is pyramid-shaped. The great majority of cases are dealt with in the lower courts – the county court and tribunals – with very few ever reaching the upper levels of the High Court, CoA and SC.

Trend to redeploy cases away from the High court. Cases which previously would have been heard by a High Court judge are now routinely dealt with by a Circuit judge or even a District Judge in the county court.

The workload of the Queen’s Bench Division of the High Court declined significantly throughout the 1990s by about 2/3, while the number of cases dealt with in the small claims court has grown as its jurisdiction has been expanded to allow more cases to be settled using the less formal and costly procedures used there. The threshold for hearing cases, other than personal injury cases, in the small claims jurisdiction has been raised from 1k to 3k and then to 5k.

Appeals

Reduction in the opportunity to appeal to the higher courts against a decision in the lower courts. As a result of the Bowman report in 1996, which concluded that the CoA was dealing with too many less important cases, the civil appeal process was streamlined and reformed in the Access to Justice Act 1999. Almost all cases seeking to appeal must now obtain permission and no longer have an automatic right to do so.

Moreover, there is normally now only one possible level of appeal, whereas in the past some cases could be appealed from the county court to the High court and then to the CoA.

Cases in the CoA can now be heard by 1 or 2 judges rather than the traditional 3-judge court.

Time taken for a case to be heard has also been reduced by the substitution of written representation for long oral argument in the form of fuller skeleton arguments produced by counsel for the judges to read before the case.

A growing problem in recent years has been the increasing numbers of unrepresented litigants in the CoA. The rise in such litigants since the 1990s can largely be attributed to the reduction in the availability of legal aid. Without the benefit of legal advice and representation, these litigants are at a real disadvantage in presenting their case while their presence also makes extra work for the court staff and judges who must take time to ensure that the procedures are understandable to them and that the arguable points in their case are fully and fairly heard while reducing the time taken up with hopeless or irrelevant arguments.

Alternative dispute resolution

As well as encouraging cases to be dealt with in the lower courts and resolved at trial level without an appeal-level hearing, there has been an increasing emphasis on the development of ADR which avoid the time, cost and stress of a formal court hearing. Mediation, arbitration and conciliation.

These different processes have in common the use of an independent third party who either imposes a decision to which the parties are contractually bound, or helps them to reach a resolution to which they agree. The advantages of these systems are that they can be cheaper because they do not involve lawyers and they can be more flexible by allowing for a range of tailor-made solutions to a dispute, some of which would be outside a court’s power to impose. They can also help to mitigate the conflict by using less adversarial techniques than the traditional court based system and provide a response which is proportionate to the scale of the dispute in terms of cost, speed and complexity.

Through mediation a third party attempts to help those in dispute to reach a settlement by acting as a go-between, articulating and explaining the views of each of the parties. The mediator fulfils an intermediary role rather than being an active participant in the resolution process. In contrast, in the process of conciliation the conciliator actively seeks to promote settlement by suggesting possible options. The use of arbitration takes this process a step further, and the arbitrator has a role much closer to that of a traditional judge- hearing both sides then imposing a settlement which each side agrees in advance to abide by.

A successful and widespread use of ADR is found in the small claims court, which adopts an arbitration-based system (Andrews, 2008) because here the process is compulsory and binding.

The experience of ADR to date indicates that if the parties to a dispute can choose not to use them, or can challenge the ADR decision on appeal, they are unlikely ever to form more than a small part of the system.

In order to address this problem, recent statutory regulation of arbitration procedures has reduced the circumstances in which parties using arbitration can appeal against a decision. However, by denying people a right to challenge a decision in the court system, there is a danger that such provisions may fall foul of Art 6 ECHR which guarantees access to an independent and impartial tribunal for the determination of a person’s civil rights and obligations. Nevertheless in Sumukan Ltd (2007), the CoA held that an arbitration agreement excluding the right of appeal on a point of law did not breach Art 6.

An additional problem posed by ADR in the courts is the effect of the fact that the court has no power to order that the losing side pays the winning side’s costs. The idea of removing cost awards in the small claims procedure was to encourage individuals with few resources to bring a case without the danger of incurring costs which might end up being more than the value of the claim. However, in practice, the removal of cost awards has often left individuals at a disadvantage when sued by companies while also deterring them from brining cases against well-resourced D’s.

The effect of the arrangement is that unrepresented individual C’s seeking damages from a business or organisation find themselves in an unequal position since such D’s are often willing and able to pay for the costs of a lawyer in order to ensure a better chance of success. In such a situation the unrepresented C with no experience of the court system is likely to feel intimidated into settling or dropping a case.

In practice, the majority of C’s in the small claims courts are companies for whom the small claims procedure provides a quick and cheap method of debt recovery. While this function is a perfectly valid one for the courts to perform, it was not the original purpose behind the removal of costs, which was to improve access to the justice system for less well-off individuals and to promote greater equality of arms by encouraging people to bring cases without the involvement of lawyers.

The compensation culture

The move towards the disposal of cases in the lower courts with a limited right of appeal and the growing support for ADR implied that the philosophy underlying recent trends in the civil justice system is that the courts are undesirable places for resolving disputes and that people should be discouraged from using them.

The compensation culture is something of a myth since the number of civil cases has generally fallen in recent years. The number of personal injury cases started between 2000 and 2005 went down despite the introduction of a ‘no-win-no-fee’ system.

Better Regulation Task Force (BRTF) in 2004 – report which concluded that the belief that the UK is in the grip of a US-style ‘compensation culture’ was unfounded. Showed that for all but one of the previous 15 years the cost of civil claims as a proportion of GDP had been steady at about 0.6% - one of the lowest of all developed states. Pointed out that where damages were awarded, these are generally relatively small amounts, with over half of those who are successful in the county courts receiving less than 3k.

House of Commons Constitutional Affairs Committee in 2006 – the evidence did not support the view that there was a compensation culture. Found that there was a widespread mistaken belief that litigation was increasing and that this was leading to ‘excessive risk aversion’ in some areas of public life which had a negative effect on valuable activities such as volunteering, sports activities and educational trips for children. “The compensation culture is a myth; but the cost of this belief is very real.”

Fear of a compensation culture can lead to people adopting overly defensive practices to minimise the risk of being sued. The Compensation Act 2006 attempts to overcome this by making clear that when considering a claim for negligence, in deciding what is required to meet the standard of care expected of the D, courts are able to consider the wider social value of the activity in the context of which the damage or injury occurred e.g. school trips and need not to discourage them because of disproportionate fear of litigation.

Do we want more litigation or less?

Setting aside the question of the indirect cost of the erroneous perception that we are in the grip of a compensation culture, the...