Heres that essay, so i couldnt send it you for some reason :dry:
Do the civil procedure rules give access to justice for all?
As well as dealing with different areas of law, the types of dispute that can arise within the field of civil law are equally varied. A company may be claiming that money is owned to it; this type of claim may be for a few pounds or for several million. An individual may be claiming compensation for injuries suffered in an accident, while in another tort case the claim might not be for money but for but for another reason: such as an injunction to prevent someone from building on disputed land. Other types of court orders include the winding up of a company, which cannot pay its debts or a decree of divorce for a marriage that has failed. The list is almost endless.
In most civil matters people regard a court case as a last resort and will try to resolve the problem without going to court, so that when a dispute arises it is likely that some form of negotiation will take place. The most usual situation is that the person making the complaint will either go to see the other side and explain the problem or they will write to the other side, setting out the complaint. Many cases will be resolved at this stage by the other party agreeing to refund money, change goods, pay the debt or take some other desired action.
If the other party will not settle the claim, then the aggrieved person must decide whether they are prepared to take the matter further. The most common next stage is to get legal advice and perhaps get a solicitor to write to the other person. This may lead to a ‘bargaining’ situation where a series of letters is written between the parties and eventually a compromise is reached. However, if, after all this, the other side refuses to pay the debt or compensation or whatever else is claimed, then the aggrieved person must decide if the matter is worth pursuing any further. This may involve starting a court case or an alternative form of dispute resolution may be used.
Taking a case to court can be an expensive exercise, even if you decide to not use a lawyer. There will be a court fee based on the type and size of the claim, which can be claimed back from the other party if you win the case, but there is always the risk that you can lose the case and have to pay the other side’s costs. Even if you win, your problems may not be over, as the other person may not have enough money to pay the claim and refund your costs. If the case is complicated it could take years to complete and may cost hundreds or thousands of pounds.
Given these problems, it is not surprising that many people who believe they have a good claim decide not to take court action.
However, starting a court case does not mean that it will actually go to court. The vast majority of cases are settled out of court so that fewer than five per cent of all cases started in the civil courts get as far as court hearing. This is because the dispute is a private one between the parties involved and they can settle their own dispute at any time, even after court proceedings have been started.
Parties are encouraged to give information to each other, in an attempt to prevent the need for so many court cases to be started. So before a claim is issued, especially in personal injury cases, a pre-action protocol should be followed. This is a list of things to be done and if the parties do not follow the procedure and give the required information to the other party, they may be liable for certain costs if they then make a court claim.
The information is usually in a letter explaining brief details of how the claim arises; why it is claimed that the other party is at fault; details of injury or other damage; and any other relevant matters. The defendant is then given three months to investigate the claim and must then reply, setting out if liability is admitted or if it is denied, with reasons for denial. If expert evidence is going to be needed, then the parties should try to agree to use one expert. This should lead to many claims being settled, but there will still be some, which need to go to court.
The present system of civil justice is based on the reforms recommended by Lord Woolf in his report Access to Justice (1996).
In 1995 Lord Woolf thought that a civil justice system should:
· Be just in the results it delivers.
· Be fair in the way it treats litigants
· Offer appropriate procedures at a reasonable cost
· Deal with cases at a reasonable speed
· Be understandable to those who use it
· Provide as much certainly as the nature of particular cases allows
· Be effective, adequately resourced and organised.
The Report found that virtually none of these points was being achieved in the civil courts, and criticised the system for being unequal, expensive, slow, uncertain and complicated. The report contained 303 recommendations. The most important ones proposed:
· Extending small claims up to £3,000
· A fast track for straightforward cases up to £10,000
· A multi-track for cases over £10,000, with capping costs
· Encouraging the use of alternative dispute resolution
· Giving judges more responsibility for managing cases.
· More use of information technology
· Simplifying documents and procedures and having a single set of rules governing proceedings in both the High Court and the County Court.
· Shorter timetables for cases to reach court and for length of trials.
The proposal to increase the small claims limit to £3,000 was implemented before the full report was issued. Before committing itself to the remainder of the reforms, the Labour Government, which came to power in 1997, commissioned the Middleton Report as a ‘second opinion’. This supported that the small claims limit should be raised to £5,000 and the fast track route to £15,000. As a result of the Woolf and Middleton Reports, the civil justice system was radically reformed in April 1999.
From 26 April 1999, new Civil Procedure Rules were brought into effect. These use much simpler language than previous rules. They also changed the vocabulary used in court cases. For example, anyone starting a civil case is now called ‘the claimant’; previously the term used in most cases was ‘the plaintiff’. The document use to start cases is a claim form, rather than a writ or a summons.
Rule 1.1 of the Civil Procedure Rules states that the overriding objective is to enable the court to deal with cases justly. This means that courts should try to:
· Ensure that the parties in any case are on an equal footing i.e. one part shouldn’t have a lawyer, while the other is representing their selves.
· Save expense
· Deal with cases in a way which is proportionate to:
1. The amount involved (that is avoid the costs of the cases being more than the amount claimed).
2. The importance of the case (for example, is there a major point of law involved?)
3. The complexity of the issues in the case.
· Ensure that the case is dealt with quickly and fairly
· Allocate an appropriate share of the court’s resources (so smaller claims do not take up more time that they justify).
Judges have more control over proceedings than previously. They can set timetables and make sure that the parties do not drag out a case unnecessarily. Rule 1.4 of the Civil Procedure Rules explains that as well as fixing timetables,’ active case management’ by judges includes:
· Identifying the issues at an early stage
· Deciding which issues need investigating and trial
· Encouraging the parties to use alternative dispute resolution if this is appropriate
· Dealing with any procedural steps without the need of the parties to attend court
· Giving directions to ensure that the trial of a case proceeds quickly and efficiently.
Case management has led to the issues in cases being identified more quickly, so that more cases are settling without the need for a trial. Judges are also staying cases so that mediation can be tried. The Centre for Dispute Resolution reported that, in 2000, 27 per cent of the disputes it dealt with were cases, which had been stayed by a judge. This compared with 19 per cent of cases in 1999 and only 8 per cent in 1998.
The judges are also applying the timetables strictly. This is illustrated by Vinos v Marks and Spencer plc (2000). In this case the claimant’s solicitors had issued the claim just within the time limit and had told the defendant’s insurers that they had done so. However, they were then nine days late in serving that claim on the defendant. The claim was struck out by the court because of this.
As you can see, since the Woolf Reform the court has changed to make it easier for everyone to understand the system. It has also made it fairer for the normal person. Before the Woolf Reform, it was very hard for someone outside the profession to understand the system. Now thanks to his reforms it is now easier and fairer.