What were the key problems identifies in the ‘Access to Justice’ 1995?
- Cost
- Delay
- Stress
- Time
Why was Cost a problem?
□ Legal profession’s fees – paid periodically
□ Cost of expert witnesses
□ Limited availability of state funding (legal aid)
® (paying at the end is an issue as unsure of how many hours you will pay them for)
® (have to pay for expert witnesses)
□ Only people with wealth can use the system
Why was Delay a problem?
□ cases could take months/years to come to trial
□ speed was determined by the lawyers
® Lawyers could control, as if not ready they could ask the courts to adjourn to a later date
□ Time = money in business
□ Litigant- anyone that goes to court
Why was Stress a problem|?
□ Litigants felt considerable stress due to:
® Delays in the legal system
® Uncertainty about outcome
® Unknown level of costs involved
® Formality of proceedings (wigs, gowns, legal language)
◊ Terminology was archaic- latin terms
Why was Time a problem?
□ It was time consuming to take legal action.
□ Time is spent: ® Attending court hearings ® Meeting with lawyers ® Obtaining evidence/ completing documents ® Time=Money in Business
What was the Access to Justice
highlighted the unnecessary complexity of many of the rules and procedures which made the system very difficult for would- be litigants to use and very expensive.
What was the Civil Procedure Rules (CPR) 1999?
- were introduced to implement many of Lord Woolf’s proposals which resulted in radical changes to civil litigation.
§ They were drafted in plain English rather than technical legal jargon and they simplified many legal rules and procedures involved in civil litigation.
§ Further improvements have been implemented more recently following the Brooke Report in 2008 which created a single County Court.
What were the changes made by the CPR 1999?
- PROCEDURES TO ENCOURAGE SETTLEMENT OUT OF COURT
- THE CPR INTRODUCED THE OPPORTUNITY FOR CLAIMANT’S TO MAKE OFFERS TO SETTLE [Part 36 offers]
- TAKING CIVIL CASES TO COURT
- PROCEDURES TO ENCOURAGE SETTLEMENT OUT OF COURT
□ At the heart of the CPR was the view that litigation should only be taken as A LAST RESORT
□ The CPR gave Judges powers to encourage settlement
□ These include the power to impose COST PENALTIES on any party who pursues or defends an action unreasonably,
- INCLUDING costs imposed on lawyers who delay proceedings
Example of payment into court
□ DECEMBER: Claimant (C) sues Defendant (D) for £125,000
(High court- Queens Bench division if it gets to trial)
□ JANUARY: D offers £100,000 to settle the claim
□ FEBRUARY: C refuses the offer
□ MARCH: D pays £100,000 into court. Court notifies C
□ APRIL: C still refuses to settle for £100,000
□ SEPTEMBER: Trial takes place
□ C wins the case but is awarded £95,000 in damages (i.e. LESS than the payment into court).
□ So C must pay all COSTS of both parties from MARCH onwards because C didn’t beat the payment into court.
- THE CPR INTRODUCED THE OPPORTUNITY FOR CLAIMANT’S TO MAKE OFFERS TO SETTLE [Part 36 offers]
□ to allow claimants the same opportunity for settlement as defendant’s who, for some years, had been able to make payments into court
Payments into Court and Offers to Settle are known as Part 36 Offers
Example of an offer to settle
□ DECEMBER: Claimant (C) sues Defendant (D) for £125,000
□ JANUARY: C offers to settle for £100,000
□ FEBRUARY: D refuses the offer
□ MARCH: C places a letter offering to settle for £100,000 into court and court notifies D
□ APRIL: D still refuses to settle for £100,000
□ SEPTEMBER: Trial takes place
□ C wins the case and is awarded £105,000 in damages (i.e. MORE than the settlement offer).
□ So D must pay a high rate of interest on the judgment debt from MARCH onwards because D could have paid less by agreeing to C’s earlier settlement proposal.
- TAKING CIVIL CASES TO COURT
□ The Woolf report stressed that the cost of litigation and the resources allocated to it should be proportionate to the complexity and size of the claim.
□ Judges are no longer merely umpires but play a more active role as case managers who are responsible for ensuring that cases progress efficiently.
What are the different tracks?
- The Small Claims Track
- The Fast Track
- The Multi track
What is the aim of the small claims track?
For claims of £10,000 or less
Aim: To provide a simple procedure to allow ordinary people/businesses to bring small, simple claims to court without the need or expense of using a solicitor.
What is the aim of the fast track?
For cases valued between £10,000-£25,000
Aim: To avoid wasting time and money on cases which are relatively small and simple
What is the aim of the multi track?
For cases over £25,000 or for very complex cases
Aim: To avoid lengthy cases which go on for months/years often caused by lawyers engaging in irrelevant legal arguments or causing unnecessary delays
What are the key characteristics of the small claims track?
– The Hearing is informal
– The Judge takes an INQUISITORIAL ROLE
– The Parties can bring a friend for assistance
– A successful party cannot recover legal costs – this discourages the use of solicitors
What are the key characteristics of the fast track?
– The Judge gives the parties DIRECTIONS in order to clarify the issues in the case E.g. limit how many specialists experts you can call upon as a witness - If a rich litigant could afford more, increases expenses - Makes the case unfair and extends the length of the case
- Ask them to give in evidence before the trial at a specific date
- you know opposition’s case
– A Trial date is set for no longer than 30 weeks from the date of the first court hearing
– The Trial lasts a maximum of 1 day
Motivation or lawyers to focus on what matters to the case
If it’s longer, the lawyer is penalised
– Penalties can be imposed by the Judge if any party fails to meet the set deadlines
What are the key characteristics of the multi track?
– Cases designated to a specific Judge
– Judge plays a more active role than pre-CPR and is no longer merely an ‘umpire’
- Judge holds case-management conferences with the parties and their lawyers in order to monitor the progress of the case
How to start a claim?
- All CLAIMS now begin in the same way
- CLAIMANT completes a Claim Form and submits it to Court
- Court SERVES the Claim on the Defendant
- Defendant has 14 days to acknowledge the form and can either admit the claim or submit a DEFENCE within 28 days
- If a defence is submitted then the case will be allocated to the correct TRACK by the Court
What is the HM online court for?
was established for civil claims of less than £25,000
What are the three tiers of the HM online court?
- The first would provide online evaluation
– to help users classify their problems and understand the options and remedies available to them. - The second would involve online facilitation
– where facilitators would bring disputes to speedy and fair conclusions without involving judges.
– The use of mediation and negotiation across the internet would be involved. - The third would involve judges working online to resolve more challenging cases
– decide cases based on papers submitted to them electronically.
– This would be supported by telephone conferencing and video links.
– The report recommends piloting the system before full-scale launch
