Processes And Mechanics Notes

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...

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