World Legal Systems Project.docx

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW.

‘ THE CIVIL JUSTICE SYSTEM (under the English Legal System1)’

Under the supervision of:

Submitted by:

Dr. Malay Pandey

Swarnim Pandey

Assistant Professor (Law)

Section- B

Dr.RMLNLU

Roll No.-157 Sem.-I

1

The term the ‘ENGLISH LEGAL SYSTEM’ will be taken to cover both England and Wales.

ACKNOWLEDGEMENT: This project is a result of dedicated effort. It gives me immense pleasure to prepare this project report on “THE CIVIL JUSTICE SYSTEM (under the English Legal System’ I would like to thank our project guide, Prof. Malay Pandey, for consultative help and constructive suggestion on the matter in this project. I would also like to thank my parents and fellow mates who have helped me in making this project a successful one. Regards to all. Swarnim Pandey.

CONTENTS:  Introduction  Court Structure  Procedure  Allocation of Cases  Civil Procedure Rules (CPR)  The Overriding Objective  Pre-action Protocols  Penalties  Alternative Dispute Resolution (ADR)  Conclusion  Bibliography

 INTRODUCTION: "English law" is a term of art. It refers to the legal system administered by the courts in England and Wales, which rule on both civil and criminal matters. English law is renowned as being the mother of the common law and is based on those principles. English law can be described as having its own legal doctrine, distinct from civil law legal systems since 1189. There has been no major codification of the law, rather the law is developed by judges in court, applying statute, precedent and case-by-case reasoning to give explanatory judgements of the relevant legal principles. These judgements are binding in future similar cases (stare decisis), and for this reason are often reported. In the early centuries, the justices and judges were responsible for adapting the Writ system to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law, e.g., the Law Merchant began in the Pie-Powder Courts, see Court of Piepowder (a corruption of the Law French "pieds-poudrés" or "dusty feet", meaning ad hoc marketplace courts). As Parliament developed in strength, subject to the doctrine of separation of powers, legislation gradually overtook judicial law-making, so that today judges are only able to innovate in certain very narrowly defined areas. The year 1189 was defined in 1276 as being the boundary of time immemorial. The courts of England and Wales are headed by the Senior Courts of England and Wales, consisting of the Court of Appeal, the High Court of Justice (for civil cases) and the Crown Court(for criminal cases). The Supreme Court is the highest court in the land for both criminal and civil appeal cases in England, Wales, and Northern Ireland and any decision it makes is binding on every other court in the same jurisdiction, and often has persuasive effect in its other jurisdictions. On appeal, a court may overrule the decisions of its inferior courts, such as county courts (civil) and magistrates' courts (criminal). The High Court may also quash on judicial review both administrative decisions of the Government and delegated legislation. The ultimate body of appeal for all criminal and civil cases in England and Wales (and Northern Ireland, and for all civil cases in Scots law) is

the Supreme Court of the United Kingdom, which took over this function from the Appellate Committee of the House of Lords (usually just referred to as "The House of Lords") in October 2009.[3] After the Acts of Union, in 1707 English law became one of two legal systems in different parts of the same, united, kingdom and has been influenced by Scots law, most notably in the development and integration of the law merchant by Lord Mansfield and in time the development of the law of negligence. Scottish influence may have influenced the abolition of the forms of action in the nineteenth century and extensive procedural reforms in the twentieth. English civil procedure shares much in common with the civil law systems of other common law countries. The civil courts of England and Wales adopted an overwhelmingly unified body of rules as a result of the Woolf Reforms on 26 April 1999. These are collectively known as the Civil Procedure Rules and in all but some very confined areas replaced the Rules of the Supreme Court (applicable to the High Court of Justice) and the County Court Rules.

 COURT STRUCTURE:  The three tracks: All defended cases are allocated to one of three tracks:  Small Claims Track: Most claims under £10,000. Note: the normal limit for housing disrepair cases and personal injury claims is £1,000.[2]  Fast Track: Between £10,000 to £25,000  Multi Track: Claims for over £25,000, or for lesser money sums where the case involves complex points of law and/or evidence. Note- The Jackson Reforms of 2013 altered the upper limit of the small claims track and the lower limit of the fast track, from £5,000 to £10,000.  Civil Courts:

Civil matters are heard at first instance (i.e. not appeals) in either the County Court or High Court. The County Court hears all Small Claim and Fast Track cases. County Courts designated as 'civil trial centres' may also deal with claims allocated to the Multi Track. Unless the parties agree, cases above £100,000 in value are not usually tried in the County Court. The High Court has three divisions, namely:  Queens Bench: for contract and tort claims  Chancery: for disputes involving equity matters such as mortgages, trusts, copyrights, and patents.  Family: for matrimonial-related disputes and cases relating to children.

 PROCEDURE:

The Civil Procedure Rules 1999 set out the rules for each stage of a case. The Rules aim to ensure that, when people sue or are sued, they obtain justice. Parties are encouraged to disclose the facts of their case prior to starting any court case. A Pre-Action Protocol[3] must be followed. All claims less than £15,000 must be started in the county court. Claims for more than this amount can be started in either the High court or the County Court, except personal injury claims for less than £50,000, which must be started in the County Court. Most type of claims are started by issuing a Part 7 claim form in which the claimant states the particulars of case, or attaches the particulars to the claim form, or serves them separately within 14 days of the claim form being served. There must also be a Statement of Truth as to the facts in the particulars of the claim. The claim form and the particulars of the claim must be served on the defendant. Service may be carried by the court or the claimant, and can be made personally, by post, by fax, by e-mail or other electronic means. Upon service, the defendant has 14 days in which to respond. A defendant may; a) Pay the amount claimed, b) Admit or partly admit the claim, c) File an acknowledgement of service (but then must file a defence within another 14 days), or d) File a defence.

The defendant must, if not admitting the claim, file a defence which has substance. It is not enough to simply deny the claim. A defence that simply denies is likely to be struck out by the court. At any point before or during proceedings, either party may make a part 36 offer to settle the claim for damages.

 ALLOCATION OF CASES: After the defence has been filed, the court sends to all parties a directions questionnaire. This helps the judge decide the track to which the case should be allocated. If a party is dissatisfied with the allocation decision an application can be made to court for the claim to be re-allocated.  Small Claims procedure Cases are heard by a District Judge who will normally use an interventionist approach. This is an approach that allows the court to try to intervene in helping the parties to agree with one another in sorting out the case. Cases are dealt with in a relatively informal way and are now heard in open court (prior to the 1999 reforms small claim cases were heard in private). The use of solicitors is discouraged because the costs of legal representation cannot be recovered from the losing side. There may be a paper adjudication if the judge thinks it appropriate and the parties agree. This approach will often be used where the legal issues and evidence is clear cut, and the parties bring documents they wish to use. In such cases the court will decide the case 'on the papers' without requiring oral evidence or legal argument.  Fast Track procedure All other cases require a process of 'Pre-Trial Directions' being a timetable for the ongoing management of the case. The idea is to simplify the case for the court. The Fast Track mandates a maximum delay of 30 weeks between the setting of Directions, and the trial date. Normally only one expert witness is allowed and, if the parties cannot agree on an expert, the court has the power to appoint one. The

expert's evidence will be given in writing. There are fixed costs for the advocate at the trial.  Multi Track procedure There is no standard procedure for Pre-Trial Directions in the Multi Track, and the judge has discretion to use a number of case management approaches, including case management conferences and pre-trial reviews. The aim is to identify the issues as early as possible and, where appropriate,to try specific issues prior to the main trial. The number of expert witnesses is controlled by the court as its permission is needed for any party to use an expert to give evidence. All time limits are strictly enforced. The court may in the directions fix a trial date, or order a trial window (approximate date for the trial) with a date being fixed by the court closer to the trial window period. In the Multi Track there is usually some degree of flexibility to shift the date of a specific direction but, once a trial date is fixed, the court is very unlikely to agree to an adjournment without a compelling reason.



CIVIL PROCEDURE RULES (CPR):

The Civil Procedure Rules (CPR) are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil cases in England and Wales. They apply to all cases commenced after 26 April 1999, and largely replace the Rules of the Supreme Court and the County Court Rules. The CPR were designed to improve access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers. Unlike the previous rules of civil procedure, the CPR commence with a statement of their “Overriding Objective”, both to aid in the application of specific provisions and to guide behaviour where no specific rule applies. In 1994, the Lord Chancellor instructed the Master of the Rolls, Lord Woolf, to report on options to consolidate the existing rules of civil procedure. On 26 July 1996, Lord Woolf published hisAccess to Justice Report 1996[1] in which he "...identified a number of principles the civil justice system should meet to ensure access to justice. The system should –

(a) be just in the results it delivers; (b) be fair in the way it treats litigants; (c) offer appropriate procedures at a reasonable cost; (d) deal with cases with reasonable speed; (e) be understandable to those who use it; (f) be responsive to the needs of those who use it; (g) provide as much certainty as the nature of particular cases allows; and (h) be effective: adequately resourced and organised.".[2] (Italics in the original.) Lord Woolf listed two of the requirements of case management as "...fixing timetables for the parties to take particular steps in the case; and limiting disclosure and expert evidence".[3] The second thread of the report was to control the cost of litigation, both in time and money, by focusing on key issues rather than every possible issue[4] and limiting the amount of work that has to be done on the case.[5] The report was accompanied by draft rules of practice designed to implement Lord Woolf's proposals. These rules: granted wide management powers to the court[6] proposed that cases be allocated to one of three tracks depending on their nature, limiting or requiring specific actions; and introduced the concept of proportionality to the costs regime. The Civil Procedure Act 1997 (c. 12) was enacted on 27 February 1997. It conferred the power to make civil procedure rules. It also established the Civil Justice Council, a body composed of members of the judiciary, members of the legal professions and civil servants, and charged with reviewing the civil justice system.

The Civil Procedure Rules 1998 (SI 1998/3132) were made on 10 December 1998 and came into force on 26 April 1999. The draft rules of practice formed their core.

 THE OVERRIDING OBJECTIVE: Implemented as a result of reforms suggested by Lord Woolf and his committee, one of the revelations of the rules is the “Overriding Objective” embodied in Part 1 of the Rules, which states (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly includes, so far as is practicable – (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; and (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

The court must seek to give effect to the overriding objective when it – (a) exercises any power given to it by the Rules; or (b) interprets any rule. The rules are written to be intelligible not just to lawyers but to litigants in person also.

 CIVIL JUSTICE COUNCIL:

The Civil Justice Council is a UK non-departmental public body that advises the Lord Chancellor on civil justice and civil procedure in England and Wales. It was established in 1998 under section 6 of the Civil Procedure Act 1997 and is sponsored by the Ministry of Justice. The Council must include:      

Members of the judiciary; Members of the legal professions; Civil servants concerned with the administration of the courts; Persons experienced in consumer affairs; Persons experienced in lay advice; and Representatives of particular kinds of litigants, for example, businesses or employees.

As of 2007, it is composed of: 

Chair

  

Deputy chair 24 members; Ex officio members:  Deputy Head of Civil Justice;  Chair of the Judicial Studies Board.

The Council's functions are to:  







Keep the civil justice system under review; Consider how to make the civil justice system more accessible, fair and efficient; Advise the Lord Chancellor and the judiciary on the development of the civil justice system; Refer proposals for changes in the civil justice system to the Lord Chancellor and the Civil Procedure Rules Committee; and Make proposals for research.

Subcommittees include:  

 

Access to justice committee; Costs committee. The purpose of the costs committee is to advise the Master of The Rolls as to Guideline Hourly rates to be referred to in summary assessment of costs, based upon evidence. Alternative Dispute Resolution committee; Experts committee.

 PRE-ACTION PROTOCOLS: To support the ethos of narrowing the issues prior to the use of proceedings and encapsulate best practice, the CPR introduced “pre-action protocols”. They are given force by Practice Direction – Protocols

 Purpose Pre-action protocols outline the steps that parties should take in particular types of dispute to seek information from, and to provide information to, each other prior to making a legal claim. Pre-action protocols, which entails setting out the claim in full to the defendant in an attempt to negotiate a settlement. The emphasis is placed on co-operation to identify the main issues. Failure to co-operate may lead cost penalties,regardless of the eventual outcomes of the case. Paragraph 1 of the Practice Direction defines the purpose of pre-action protocols as: 



encouraging the early exchange of all information relating to the prospective legal claim aiding settlement of the claim without the commencement of proceedingsproducing a foundation for efficient case management where litigation cannot be avoided

 Cases not covered by a protocol Where no protocol has been published Paragraph 4 states that parties should conform to CPR 1 and the Overriding Objective. It also sets out what would normally be considered reasonable behaviour prior to issue. Where a case has been commenced prior to the protocol coming into force, but after publication the protocol is not binding. However, the degree to which a party has attempted to follow it anyway might be persuasive.

 PENALTIES: Paragraph 2 indicates that the Court may add terms to any order if it feels a party has breached a protocol. These will place parties in the same position as if the breach had not occurred (or as close as possible). The court may, amongst other remedies, order that the party in breach:   



pay some or all of the costs of another party pay costs to another party on an indemnity rather than standard basis pay a higher rate of interest on particular damages awarded, or for a particular period. forgo interest on a particular item of damages or for a period.

For instance, where a party commences proceedings prior to supplying important information to the other party(s) then the Court might disallow interest for the period prior to the information being provided. In addition, the protocol might provide grounds to show a party had or had not behaved so unreasonably as to merit penalty under another Rule (for instance CPR 44.3).

 ALTERNATIVE DISPUTE RESOLUTION (ADR):

Alternative Dispute Resolution (ADR) refers to methods of resolving disputes which do not involve going to court before a judge. The aim of ADR is to provide disputing parties with an alternative to going to court which is quicker and cheaper. There are a number of types of ADR. Some of the most common are listed below.  Mediation

Mediation is a process of negotiation in which the disputing parties come together to discuss their differences under the supervision of a mediator. The mediator may be court-appointed or chosen jointly by the parties.  Conciliation The conciliation process is similar to mediation but is more commonly used by government agencies or tribunals. For example, industrial disputes involving employers and employees may often be referred to conciliation.  Arbitration Arbitration is quite similar to a court hearing. The disputing parties are present, commonly accompanied by their lawyers, and the dispute is determined by an impartial arbitrator who may be court-appointed. The benefit of using arbitration is that it is cheaper and the rules of arbitration are not as rigid as the rules of court.  Counselling Counselling involves one or both of the disputing parties discussing and working through the issues in dispute with an impartial counsellor in order to find a solution. Counselling may be particularly useful for inexperienced parties who are able to benefit from a counsellor's objective and experienced opinions. There are several other methods of alternative dispute resolution. Whether they are appropriate will depend on the parties involved and the nature of the dispute. It is important that parties are aware that going to court is not the only option.

 CONCLUSION: In conclusion, there are imbalanced arguments for and against new CPR as they have a similar to result ass the old Civil Justice System. The key reforms such as

case management, has been successful in improving the complex civil procedure. However, it remains clear there are aspects where the requirement to meet the objectives of Woolf’s reforms have not been met, evidenced by critics who have identified that they were not as successful as hoped. Litigation costs for litigants will still remain a problem and it is likely that they would resort to ADR to solve disputes as this is far cheaper than court. Also, delays still exist, but the process has become faster due to the new rules. Overall, after considering the outcome of Lord Woolf commission, it could said that a great number of changes needed to be made to the old civil, procedures and this in turn has helped the Civil Justice System to ensure fairer procedures for litigants as well as judges.

Civil justice system is a place for everyone for accessing justice and in keeping a balanced society. Civil justice system should continue to modernize with assisted technology and advance for high effectiveness of service which the public will be able to access fairly, speedily and cheaply.

BIBLIOGRAPHY:

 https://en.wikipedia.org/wiki/Courts_of_England_and_Wales  https://en.wikipedia.org/wiki/Civil_Justice_Council  https://en.wikipedia.org/wiki/Law_of_the_United_Kingdom  https://en.wikipedia.org/wiki/Courts_of_the_United_Kingdom  https://en.wikipedia.org/wiki/Civil_Procedure_Rules

 http://www.lawteacher.net/free-law-essays/civil-law/extensive-review-ofthe-civil-justice-system-in-england-civil-law-essay.php  English Legal System (The Fundamentals) First Edition -- (Jo Boylan-Kemp)