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Law-Exchange.co.uk Shared Resource Law-Exchange.co.uk Shared Resource Document Transcript

  • Worksheet 1 Civil Law Definition: A basic definition for civil claims is to say that these arise when an individual or a business believes that their rights have been infringed in some way. What is a civil case? Civil court cases arise where an individual or a business believe their rights have been infringed in some way. Different types of civil claims include; • A business may claim that they are owed money from someone for supplies which have not been paid for - contract law • An individual may wish to claim compensation for injuries suffered in a road traffic accident - the tort of negligence • The owner of a house may wish to prevent another person walking on their land and seek an injunction - the tort of trespass to land This is only three examples of civil cases; there are in fact hundreds of different types of claims which may be brought in the civil courts. The Civil Claims Process Negotiation In most cases going to court is a last resort. When a situation arises then negotiation may take place to avoid going to court, this could involve taking sub-standard quality goods back to the shop to claim a refund or by writing a letter to the other side setting out your complaint. Many cases will be resolved at this stage by: • Taking back the goods for a refund • Exchanging goods • Paying the debt or taking some other form of action What would you do if you bought a new TV and it was faulty and you took it back to Curries who said they would not honour a refund? Advice from a solicitor If the other side in a dispute will not settle the claim through negotiation then the aggrieved person must decide if they wish to take the case any further. The usual next stage is to consult a solicitor, they will then write to the other side on your behalf. However when the other side will not negotiate or compromise you may need to start a civil claim. The first thing to check before taking someone to court is do they have the money to pay you should you win the case? If they don't then you may be wasting your time and money! Taking a Civil Case to Court
  • Going to court means expense! There will be a court fee, solicitor's costs and of course there is no guarantee that you will win the case. The civil justice system was reformed in 1999 following the Woolf Report, Access to Justice (1996). These reforms attempt to simplify the procedures and terminology and speed the process up. Parties to a civil case are now encouraged to follow a pre-action protocol, this is a list of things to be done, and information which should be given to the other side before court proceedings are started. If the pre-action protocol is not followed then the party at fault may be liable for certain costs when the case comes before the court. Now look at the attached documents including the claim form and the accompanying notes. Which Court Should You Start Your Civil Claim In? There are two Courts of First Instance which hear civil claims; • County Court • High Court For cases where the claim is for £25,000 or less the case must be started in the County Court. For larger claims you can usually choose which court you start your claim in. So, for most cases over £25,000 a claimant will be able to choose the most convenient court for starting the case. Case 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. Which court could hear Thomas’ case? ………………………………………………………………………………………………………… Case Sarah has bought a DVD player costing £70 from a local electrical store. The DVD player has never worked properly, but the store has refused to replace it or to refund the purchase price to Sarah. She wished to make a claim against the store. Advise her as to which court to start the case in and how she should go about this. …………………………………………………………………………………………………………… ……………………………………………………………………………………………………… ………………………………………………………………………………………………………… ………………………………………………………………………………………………………… The High Court
  • If the High court is chosen to pursue a case, then there is a question of which division to use. There are three divisions dealing with different types of law. These are: Queens Bench Division - deals with contract and tort (civil wrongs) cases which are worth more than £50,000. Although cases over £15,000 can be started in the Queens Bench Division. Chancery Division - involve insolvency, for both businesses and individuals, and the enforcement of mortgages, disputes relating to trust property and copyright matters. This Division also deals with contested probate matters. Cases are heard by a single judge and juries are never used in this division. Family Division - hears cases involved with families and any matter relating to children under the Children Act 1989. It also deals with such things as nullity of marriage and grants probate in non-contentious probate cases. Cases are heard by a single judge and juries are never used in this Division. County Court Most major towns have a County Court. The usual types of cases they hear are; • Contact and tort claims • Cases for recovery of land • Disputes over partnerships, trusts and inheritance up to £30,000 Some County Courts also have jurisdiction to hear divorce cases. The County Court can hear small claims track, fast track and multi-track cases (look at later) and in 2003 approximately one and a half million cases were started in the County Courts. Most cases however do not proceed to trial and in 2005 only 17,318 cases were heard in the County Courts, with a further 47,521 cases being heard in the small claims procedure. The table below shows a summary of where cases are likely to be tried: Court Fees View slide
  • In 2007 the fee for a claim of up to £300 was £30, with the maximum fee for a small claim (under £5000) being £108. Claims of £5000 - £15000 had a fee of £225, while at the top end of the scale claims of over £300,000 had a fee of £1530. Defending a claim When a defendant receives the claim form from the court they may do one of the following things; • Admit the claim and pay the full amount • Dispute the claim by sending a N9 (Acknowledgment of Service) or a defence to the court within 14 days • Do nothing If the defendant does nothing then the claimant can ask the court to make an order that the defendant pays the claim in full and the costs, this is known as an order in default. Key Facts The Three Tracks View slide
  • Once a claim is defended the court will allocate the most suitable ‘track’ or way of dealing with the case. The decision on which track should be used is made by the District Judge in the County Court or the Master in the High Court. The Small Claims Track This is normally used for disputes under £5,000, apart from cases involving personal injuries or housing where the limit is £1,000 This is a fairly cheap and informal way of settling small disputes. The procedure in the small claims track People are encouraged to bring their own case so that costs are kept to a minimum. It is possible to use a solicitor in the small claims track, however, the winner cannot claim the cost of their solicitor from the losing side. Judges in small claim cases play an active role in the proceedings, asking questions and ensuring that both parties explain all their important points. Advantages of the Small Claims Track • The cost of bringing a case is low, especially for claims under £1,000 • If you lose you will not have to pay for the other side's solicitor • People can bring the case themselves and do not need to use a solicitor • The procedure is quick • The District Judge helps the parties explain their case Disadvantages of the Small Claims Track • For cases over £1,000 an allocation fee has to be paid • Legal funding for a solicitor is not available • Where the other side is a business they are more likely to use a solicitor, this puts an individual representing themselves at a disadvantage • Research shows that District Judges are not always helpful to unrepresented parties • Even if you win your case it doesn't mean the other side will pay you. Only about 60% of successful claimants actually receive all the money awarded by the court. The Fast Track This is used for straightforward disputes between £5,000 and £15,000 This track is used for claims between £5,000 and £15,000, personal injury and housing cases from £1,000 - £15,000 are also dealt with as fast track cases. For fast track cases the court will set down a very strict timetable for pre-trial matters. The aim of this is to prevent either party from wasting time and adding unnecessary costs. Once a case is set down for a hearing the court aims to deal with the case within 30 weeks. A fast track trial will usually be heard by a circuit judge and will follow a more formal procedure than the small claims track. In an attempt to speed up the trial the hearing
  • will be limited to a maximum of one day, with usually only one expert witness being allowed. The Multi-Track Claims for more than £15,000 are usually allocated to the multi-track. If the case was started in the County Court then it is likely to be tried there, however it can be sent to the High Court. The case will be heard by a circuit judge who will also be expected to manage the case from the moment it is allocated to the multi-track. Task The procedural judge will allocate the action to the most appropriate track. Fill in what type of track the following are? Name Types of claim Time Straightforward Around half an hour cases worth less than £5,000 Claims between Complex cases raising issues of £5,000 and £15,000 public importance or requiring head in the county expert evidence. court. Claims over £50,000 in High Court. Claims worth £5,000 3 hours, with an absolute maximum - £15,000; heard in of one day. Trial must take place the county court. within 30 weeks of the action being brought. Fixed timetables for documentation. Scenario
  • Andrew & Beth have had their car serviced and repaired at a garage in Nuneaton called King Edward Motors. They paid for the work in full when they picked up their car but were not happy with the standard of the work carried out. They took the car back to King Edward Motors but they refused to refund any of the £350 paid for the service and repairs. They did however agree to “have another look at it.” The garage was left unattended and unlocked over lunchtime and the car has been stolen. The car was worth £12,500. The Garage will not accept responsibility for the theft of Andrew & Beth’s car and have refused to talk any further to Andrew & Beth. Task Using the forms attached complete all the pre-trial stages of the case for Andrew and Beth and for King Edward Motors. Also write a letter before action. After you have written the letter before action and completed the claim and defence forms write a short explanation of where this case would be heard, including details of which track it would be allocated to and which type of judge would hear the case. *A letter before action is the first stage in civil proceedings where the claimant or their solicitors write to the defendant to ask for settlement of the claim. Example letter which could be sent before court proceedings