Briefly describe both (i) the three track system of justice, and (ii) the procedure under Article 234 for making references to the European Court of Justice (i) The three-track system of justice was introduced in the Access to Justice Act 1999 following the Woolf reforms. This was because people making claims in the civil courts were finding it very costly, slow and over-formal. Many felt forced to settle early and out of court because of the costs and delays. The first track is the small claims track, which covers claims up to 5,000.
These are dealt with in the Small Claims Court, within the County Court, and are known as a DIY form of justice in that the parties are encouraged to represent themselves because they cannot claim legal costs from the losing side if they win. The second track is the fast track, so called because it is intended to cover straightforward claims between i 15,000 before a District Judge in the County Court. A very strict timetable is enforced so that no expensive time-wasting occurs with the parties' lawyers.
It is intended to deal with claims from start to finish within 30 weeks though research in 2000 showed that this has not been met in many cases. A Circuit Judge will usually hear the case within a day if possible. The third track is the multi-track for claims over 15,000, again in the County Court but also in the High Court for larger claims over 50,000 or for legally complex cases. The judge acts as a manager of the case, again to speed up procedures and may even suggest ADR as an alternative.
(ii) The European Court of Justice (ECJ) is able to give preliminary rulings under Article 234 where UK courts can ask it for assistance in understanding European Law. Rulings from the ECJ are binding on even the House of Lords so this is a very important procedure if a person feels their rights have been infringed under European Law. The House of Lords must refer to the ECJ for a ruling on what the EU law means if it affects the case in some way. All other courts have a discretion and may refer.
Even a magistrates court can refer to the ECJ for a ruling, as was seen in the B&Q case in 1990 over Sunday trading laws. However, there is no need to refer a case if a similar case has already been decided before or if the EU law is already clear in regard to its application to the case. Discuss the advantages and disadvantages of using Alternative Dispute Resolution (ADR) rather than using the courts to resolve civil disputes. When a person or business needs to have a legal dispute that they have with another party resolved then they would prefer it to be done as quickly and as cheaply as possible.
Part of the problem of using the normal civil courts such as the County court or the High court is it can take a long time for the case to be settled, it is often too formal, and using expensive lawyers can sometimes make the legal costs higher than the actual damages claimed. This is still despite the new reforms of the three-track system brought about by the Woolf reforms and the Access to Justice Act 1999. In fact, part of that Act now allows for a greater use of ADR ranging from very informal negotiations between the parties to the more formal commercial arbitration hearing.
Public funding has been a major factor behind this move as ADR tends to be seen as both cheaper and quicker ways of resolving civil disputes. Mediation, is used now for divorce cases where issues over the custody of children as well as maintenance payments and who gets what property etc. can be settled in a more friendly way than fighting these issues in a court. It is also of course more private, where a mediator tries to help the parties come to a compromise solution where they can reach some common ground.
However, these are still only voluntary and one of the parties may wish to drag the case out in court. Conciliation, through ACAS (Advisory Conciliation and Arbitration Service) has played a major role in helping resolve employment disputes between employer and employees without the need to go to an employment tribunal. ACAS has specially trained conciliation officers who have a great deal of experience of employment disputes and this has helped at least half of all claims so far be settled before going to a tribunal.
However, there is some criticism that employees tend to get less than if they went to tribunal, and some people have complained that they were under pressure to settle earlier than they would have wished to. Many businesses in dispute with each other now prefer to go with the Centre for Dispute Resolution (CDR), set up in 1991, where disputes can be resolved fairly quickly, cheaply and more importantly in private so that businesses can avoid any bad publicity that would have come from an open court case.
The CDR claim an 80% success rate although the other 20% would probably have had to go to the more expensive County or High court. Again, there have been criticisms that the amount awarded through mediation has not been as high as what would have been awarded by the courts. Nevertheless, it is now accepted that voluntary mediation can promote an early settlement to a dispute and, with a skilled mediator, help overcome any bad feelings between the parties involved.
Another form of ADR that is popular in commercial disputes is arbitration, where the parties nominate an independent arbitrator to listen to both sides of the dispute and make a judgement in the same way that a judge does. This is similar to what happens at the Small Claims court involving disputes under i?? 5,000. Many commercial contracts, such as package holidays, have what's called a Scott v Avery clause in which it states that any dispute that arises will be dealt with by arbitration. The Institute for Arbitrators provides trained arbitrators for major disputes and usually this will be someone who has some expert knowledge of that area.
The main advantages of arbitration is that the parties can chose their own arbitrator and if this person has specialist knowledge then this cuts down on the need for expensive expert witnesses that would have been used in a court. The hearing and time can be arranged to suit both parties, the procedures are fairly flexible and informal, and it is dealt with in private. There is also the fact that it is usually much cheaper and quicker than the courts and the decision of the arbitrator is final and can be enforced through the courts.
However, arbitration has its disadvantages not least the fact that there is no legal aid available for an individual suing a large business, who will have expert lawyers at their disposal. The rights of appeal are limited so you have to accept the arbitrator's decision. There may be costs because professional arbitrators can be expensive and with big disputes this can be as much as a court hearing or case. Actually, arbitration is losing its initial appeal because of its complexities and many are now turning to mediation and the CDR as a more straightforward form of dispute resolution.
In conclusion, while ADR has its usefulness in regard to some types of disputes, there are still many others for whom a court hearing can be the best way, especially now with continued improvements being made to the three track system in the civil courts. Civil Courts Compare and contrast the formal civil court system with methods of ADR. The civil courts have traditionally been seen as the cornerstone of British justice, providing a formal mechanism for resolving civil disputes and reconciling conflicting interests within society.
The County Court has, through the Lord Woolf reforms in the Access to Justice Act 1999, gone through a lot of change and its jurisdiction has been increased through the use of fast and multi-track procedures. The Small Claims court (within the CC) now hears all cases up to i?? 5,000 through its small claims track. These cases are heard by the district judge, in private, by way of arbitration, which is quicker and cheaper than a full court hearing. The parties do not need legal representation, so the costs remain low and the hearing relatively informal.
This is a popular method of dispute resolution as it is less contentious and more private than cases heard in open court. The County Court itself hears cases up to i?? 50,000 for most civil matters, although it is possible to transfer cases between this court and the High Court, irrespective of amount, depending on the legal complexities raised by the plaintiff's claim. The County Court processes up to 90% of all civil litigation and it was not uncommon to experience delays of 2 to 3 years, but now strict time limits are being placed in an attempt to keep down costs and speed up the whole system.
This will be particularly important if the already over-stretched legal aid and advice schemes are further restricted. Even with the expansion of the conditional fee system, the costs of going to court can be still quite high and it is unlikely that lawyers will be willing to take on risky cases if they are to be paid on a "no win, no fee" basis. The High Court is divided into three sections: the Queen's Bench Division, Chancery Division and Family Division, each of which has its own special jurisdiction.
The puisne judges who sit here are selected by the Lord Chancellor from the ranks of practising barristers, although there have been problems recently as the best members of the Bar are reluctant to take on the rather strange lifestyle and drop in income that becoming a judge entails. It has been suggested that academic lawyers could be added to the pool from which judges are chosen. Since the 1990 Courts and Legal Services Act, solicitors may also be appointed as either circuit or High Court judges, once they have either served time as a Recorder or have their certificate of advocacy.
Costs in the High Court are significantly higher, both by way of fees and the need for having a barrister. Although solicitors are now allowed to represent clients in the High Court, once they have obtained an advocacy certificate, this is still quite a rare event. Many plaintiffs still choose to begin their case here, however, as the stricter rules of procedure mean that the case can be more closely controlled, and the introduction of special sections, such as the Commercial Court, mean that business disputes can be resolved quickly.
The appeal courts, being the Court of Appeal (Civil Division) and House of Lords, are also subject to criticisms of costs, delay and access, especially the House of Lords, when appellants need permission in order to take their case to this supreme court. The time delays are particularly serious here, and, in some cases, it has been suggested that the defendant deliberately causes delays so that the plaintiff dies before the case is finally settled or is forced to settle out of court for a smaller payment.
The alternatives to the formal system include tribunals, arbitration, mediation and conciliation. Tribunals are usually administrative, and deal with social legislation such as employment, rent or benefits etc. They may also be domestic, and deal with disputes arising within a profession. They are staffed by experts and chaired by a qualified lawyer, all chosen from lists held by the Lord Chancellor. They therefore have expertise in the particular area of law with which they deal, and, as there is no need for legal representation, the costs are low.
Rights of appeal tend to be limited, but the prerogative orders apply, and may be granted by the Divisional Court of the QBD. The Franks Committee said that tribunals should be characterised by "openness, fairness and impartiality", and it is generally accepted that these ideals are achieved. Tribunals are therefore popular as they are quick, relatively cheap, private and expert in the fields in which they operate, but tribunals only exist in respect of certain, limited areas of law, such as employment law, and cannot be used for general disputes.