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heirachy of civil courts
Free essay example:
Hierarchy of the civil courts
The diagram bellows shows the hierarchy of the various English courts. There are two branches to the courts system: civil and criminal. This lesson deals with the civil courts. Those courts which are primary civil courts and are highlighted in bold, although, as you will read, some types of civil cases may be heard in the magistrate’s court.
HOUSE OF LORDS
COURT OF APPEAL
Criminal Division Civil Division
CROWN COURT HIGH COURT
MAGISTRATES COURT COUNTY COURT
Historical Development of the courts
The present structure of the court system dates from the judicature act 1873, which established the supreme court of judicature. This court, currently termed the Supreme Court, consists of the high court of justice, the crown court and the court of appeal
Courts exercising civil jurisdiction
The courts are responsible for administering justice. The phrase “exercising civil jurisdiction” refers to courts that have the power to deal with civil (rather than criminal) cases.
The principal inferior court exercising civil jurisdiction is the county court, although magistrates’ courts hear some civil cases. There are three main superior courts exercising civil jurisdiction: the high court of justice, the court of appeal (civil division) and the House of Lords.
The court in which a case first appears will be dependent upon the nature of the case and/or the value of the claim
If someone is unhappy about the decision made by the judge responsible for their case, they may be able to appeal against the decision to a higher court. In most civil cases a judge’s permission to appeal is required.
An underlying principle of the appeals system (or ‘appellate’ system) is that individuals who have grounds for dissatisfaction with the outcome of their cases should always be able to have the case looked at by the higher court so that it can consider whether there appears to have been an injustice and, if so, allow an appeal to proceed.
The appeal routes are described in the sections below.
- County courts: established by the county courts act 1846 to operate the chief lower courts for the trial of civil disputes, the county courts deal with the vast majority of civil disputes. The county courts act 1984 governs most proceedings in the county courts, but this was amended by the high court and county court amendment order 1997.
The judges who preside over the proceedings in county courts are circuit judges appointed by the crown on the advice of the Lord Chancellor, following selection by the judicial appointments commission. They must be barristers of at least 10 years, with busy courts in urban areas having a number of joint district judges
Examples of cases heard in the county courts include
- landlord and tenants disputes
- consumer disputes
- personal injury claims
- undefended divorce cases
- race, sex and disability discrimination cases
- debt problems
- employment problems
Since the implementation of the Woolf Reforms (which resulted from Lord Woolfs Access to justice reports 1996), civil cases are assigned to one of three ‘tracks’ according to their value. Cases where the value of the claim is expected to be £15,000 or less (or, in the case of a personal injury claim, less than £50,000) are usually heard in the county court
A county court appeal lies from a district judge to a circuit judge and from circuit judge to a high court judge.
- Magistrates’ courts: although these are essentially criminal courts, magistrates also have a civil jurisdiction, e.g. the making of affiliation orders and authorising the recovery of small debts. Their main civil jurisdiction is concerned with domestic proceedings and applications for matrimonial relief such as separation and maintenance orders- see the domestic proceedings and magistrates’ court act 1978.
They also deal with questions concerning the residence and adoption of children and the giving of permission for persons under 18 to marry where they cannot obtain their parents consent. Domestic proceedings are dealt with in separate branches of the magistrates’ court known as the family proceedings court and family panels- see s.92 and schedule II of the CHILDREN ACT 1989.
In civil cases, appeal from magistrates’ courts usually lies to a divisional court of the family division of the high court.
- The high court of justice
The high court deals with the more serious civil cases, and hears most appeals from the county courts. Is also hears appeals about decisions made by the tribunals services which you will find out about further through the lesson. In addition, s you will find out in the next lesson, it hears appeals in some criminal cases.
Although originally divided fro administrative purposes into five divisions: queens bench division, common pleas division, exchequer division, chancery division and probate, divorce and admiralty division, the high court of justice now consists of three division: queens bench division, the chancery division and the family division.
Under s.4 of the Supreme Court act 1981, as amended by the constitutional reform act 2005, the high court consists of the lord chief justice, the heads of the three divisions and not more than eighty-five puisne judges of that court, known as justices of the high court. The number of puisne judges may be increased by orders-in-council. The qualification is that of at least ten years as a barrister.
As mentioned, the high court is divided into three divisions, although this division is only for administrative purposes and the number of divisions may be increased or reduced by order-in-council.
- The Queens Bench Division: this division tries the majority of civil cases, including cases involving torts, contracts, or the recovery of land. It now includes a commercial court and an admiralty court. The queens’ bench division is headed by the president of the Queen’s Bench division. This post was created when the lord chief justice, who used to be head of the entire judiciary, under the provisions of the constitutional reform act 2005.
- The chancery division: the chancery division deals with matters such as the administration of estates, partnership, company law and trusts. It now includes a patents court. This division is headed by the chancellor of the high court (previously called the vice chancellor).
- The family division: established by the administration of justice act, 1970, it deals with all high court business concerning marriage, family property and children, including adoption and wardship. The family division is headed by the president of the family division.
The distribution of business between the high court is determined under s.61 of the Supreme Court act 1981 and is at present specified in schedule 1 to that act. Each of the above division also exercises certain jurisdictions through the medium of a divisional court, i.e. a court composed of two or more judges. The jurisdiction of the divisional courts of the family and chancery division is purely appellate (i.e. they only hear appeals), with the divisional court of the family division hearing appeals from the magistrates courts in matrimonial cases, the divisional court of the chancery division hearing appeals on bankruptcy cases from county courts outside London, and the bankruptcy court of the chancery division hearing bankruptcy appeals from London. The divisional court of the Queen’s Bench division also exercises an appellate jurisdiction on points of law in cases stated by the magistrate’s court. This form of appeal which may only be used to challenge a decision made on points of law not on points of fact, is referred to as an appeal ‘by way of case stated’.
Case where the value of the claim is expected to be more than £15,000 (or in the case of a personal injury claim, £50,000 or more) is usually heads in the county court. Cases with a value of more than £50,000 will be dealt with in the high court, while cases valued between £25,000 and £50,000, are usually dealt with in the county court but may be dealt with in the high court, usually on the grounds of complexity.
Appeal lies from the high court to the court of appeal.
- The court of appeal
The court of appeal sits in two divisions- civil and criminal. The members of the courts of appeal are: the lord chief justice, the master of rolls, the president of the queens bench division (a new office created in 2005), the chancellor of the high court (called the vice-chancellor prior to 2005), the president of the family division, the vice president of the court of appeal (civil division) and about 35 lords of justice of appeal.
The court of appeal (civil division), which sits under the presidency of the mater of rolls, hears appeals from cases tried before the high court or the county courts. Appeals can be based on matters of law, fact or both. The court may uphold or reverse the decision of the lower court or substitute another judgement. It may order a new trial in a proper case.
Appeal, which is usually only considered on points of law of public importance, lies from the court of appeal to the House of Lords.
(c) The House of Lords
The house of lords was not included in the supreme court of judicature. However, its jurisdiction as a final court of appeal was restored by the appellate jurisdiction act 1876, which also provided the house with professionally qualified judges. The house of lords is the highest element of the English legal system, although in matters of European law it must accept and apply the rulings of the European court of justice. The house of lords exercises its judicial function through a committee of the house composed generally of five lords of appeal in ordinary (or law lord). It only hears appeals.
The constitutional reform act 2005 provides for modifications to the court system, although theses have not yet been fully implemented. The role of the law lords would be abolished and an implemented. The role of the law lords would be abolished and a new supreme court (separate from the House of Lords with its own independent appointments system and its own staff and budget) would be established in its stead. This is due for implementation in 2009. The courts that currently make up the supreme court of judicature, (the court of appeal, high court of justice and crown court) will become known as the senior court of England and Wales.
In civil matters the court hears appeals from the court of appeal (civil division) in England, from the Court of Session in Scotland, and from the supreme court of Northern Ireland. There can be no appeal unless the lower courts or the lords give eave. Further, in certain cases, where interpretation is involved, or where the high court judge is bound by a precedent of the court of appeal or the House of Lords, the high court may allow an appeal to go direct to the House of Lords bypassing the court of appeal. This leapfrog procedure was introduced by the administration of justice act, 1969.
The court of justice of the European Union
The court of justice of the European Union (the European court) ensures the observance and recognition of community rules with regard to legal interpretation and application. It is concerned with disputes between member countries, individuals and the EU institutions on matters relating to the treaties, and its rulings are binding. The court is the final arbiter in all matters of law that lie within the scope of the treaties.
The court of justice consist of 15 judges and is assisted by advocates-general whose duties are to present publicly, with complete impartiality and independence, reasoned conclusions on cases submitted to the court with a view to assisting the latter in performance of its duties.
Judges and advocate general are chosen from among persons of indisputable independence who fulfil the conditions required fro the holding of the highest judicial office in their respective countries or who are jurists of recognised competence.
Alternatives to the ordinary civil courts
As we have seen, criminal problems are dealt with by the state through criminal courts. However, for civil disputes, citizens also have access not only to the civil courts but to some alternatives.
The first alternative to develop came by way of administrative tribunals. Tribunals are set up by parliament and deal with specific areas of law. They are similar to the courts in that both sides present their arguments in a case and a decision is reached by a third party (in this case The true alternatives to the civil courts are the methods of disputes resolution which have been developed under the heading of ADR – alternative dispute resolution. Theses methods are arbitration, conciliation and mediation.
As seen in the diagram below
Resolving Civil Disputes
Courts tribunals ADR
Arbitration, conciliation and mediation
Under the tribunals and inquiries acts of 1958, 1971 and 1992, many disputes at the present day are adjudicated upon, legal rights determined by, people or bodies falling outside what are traditionally called the ordinary courts. Parliament has in recent years increasingly conferred on tribunals the power of making decisions that may affect private rights. These tribunals, which are outside the ordinary judicial system, are not for the most part staffed by lawyers, though most of them have legally qualified chairmen. Chairmen undergo training which is organized by the judicial studies board.
Tribunals are usually made up of a panel of three individuals. In addition to the chairman there will be two lay (i.e. not necessarily legally qualified) members who will have some experience of the particular area that the tribunal covers.
People who appear before tribunals do not have to be represented by a member of the legal profession. Depending on the nature of the tribunal, they may instead choose to be represented by, for example, a trade union official, an accountant, a surveyor, a doctor, a social worker or a friend, or they might want to represent themselves.
Tribunals are an important part of the justice system. They handle more cases each year than the ordinary civil courts and often involve the most vulnerable people in our society.
In 2007 there were 21 central government tribunals. Administrative support for the tribunals is provided by the tribunal service. Which is an executive agency of the ministry of justice? Different tribunals deal with different types of problem. Here are some examples
- Asylum & Immigration tribunal
- Asylum support tribunal
- Employment tribunals
- Employment appeal tribunal
- Financial services and markets tribunal
- Immigration services tribunal
- Lands tribunal
- Mental health review tribunal
- Pensions appeal tribunal
- Social security and child support appeal tribunal
- Special education needs and disability tribunal
- Transport tribunal
- VAT and duties tribunal
The jurisdiction of the tribunals may be original or appellate. Employment tribunals, for example, hear cases involving employment rights, while the employment appeals tribunal hears appeal from decisions made by, among others employment tribunals
Appeals from tribunals, where permitted, may be heard in the high court or the court of appeal.
Tribunals have themselves recently been subject of a far-reaching report (the Leggattt report), which has made a number of recommendations.
Advantages of Administrative tribunals
- Cheapness: it is clear that the cost of such a tribunal must be less than the relative cost of a court of law. In addition the cost incurred by the person appearing before theses tribunals are very much less than the cost they would incur in the high court in similar causes of action.
- Speed: they can function mote quickly than a law court because they do not follow meticulously rules of evidence and procedure.
- Personnel: the personnel of administrative tribunals consist of people possessing special knowledge in the subject brought before the tribunal.
- Informality: proceedings tend to be less formal than in a court
- Flexibility: do not have to follow their own precedents (but do have to follow courts precedents)
Disadvantages of administrative tribunals
- State-Funded Assistance: Legal aid is not generally available, so even though the cost of the case are ,lower than in a court they may still be prohibitively expensive
- Accountability: Tribunals do not always give reason for their decisions
- Right of appeal: There is no general right of appeal.
Judicial control over tribunals
Judicial control is initially exercised by the right of appeal provided by the tribunal and inquiries act 1971. In addition, the courts have the power of review based on the common law power of the Queen’s Bench division to examine the extent and mode of exercise of the powers of tribunal.
Arbitration is where the two sides to a dispute agree to submit their dispute to an ‘independent third party’, the arbitrator will ‘impose a solution’ on parties which is to be binding. (You will see how this differs from the role of the independent thirdin mediation and conciliation)
Arbitration, which can be conducted confidentially and in private, is becoming more and more common in the commercial world as a method of settling disputes. In addition to its lack of publicity, arbitration is quicker, cheaper and more informal than resort to litigation, and the general law in relation to it has been consolidated in the arbitration act 1950 as supplemented by the arbitration act 1996. The arbitration act 1996 provided a new approach to ensure that the arbitration procedure is speedy and cost effective and a proper alternative to litigation.
ACAS (the arbitration and conciliation service), is a well known organisation that specialises in arbitration within the field of employment relations.
Arbitrations are often used where there are collective disputes, perhaps between a workforce and the organisation that employs it. For example, if a trade union is considering calling for a strike action because agreement with an employer over a particular issue cannot be reached, the trade union and the employer may agree that an independent arbitrator, probably from ACAS, is called in.
Many contract feature an arbitration clause (known as a Scott v Avery clause), with both parties to the contract agreeing in advance that any future unresolved disputes will be referred fro arbitration.
Arbitration is similar to the court process in that each side puts forward their own argument and evidence, and, as mentioned above the arbitrator’s decision is binding.
There is no automatic right of appeal and, if a point of law is t issue, the case may not be suitable for hearing before an arbitrator
Conciliation, Mediation and Negotiation
- Conciliation: conciliation is where an independent third party, the conciliator offers up possible solutions to the parties and it is up it them to decide which one to use. Conciliation is often used where there is a particular legal dispute, rather than for more general problems. The conciliator usually has expert’s knowledge of the particular area at the centre of the dispute.
- Mediation: Mediation is where an independent third party, the mediator, acts as a facilitator between the two sides to the dispute. The mediator talks to both sides separately as well as talking to them together if necessary. The mediator will not offer possible solutions but will encourage the two sides to talk to one another so that they come up with a solution of their own. The advantage of this is that it is more likely to be a workable solution which will enable business people to carry on dealing with one another despite this disagreement. Possible disadvantages include the fact that the process is not binding on either party and that not all lawyers are supportive of the process. Mediation, at present, has its greatest role to play in the industrial setting, where it may be used to, for instance, sort out disagreements between workers or problems between an individual employee and his/her employer. Family mediation has also been found to be an effective procedure.
- Negotiation: negotiation involves the two parties, or their representatives, entering into direct communication in order to sort out problems.
Typically, one side will approach the other with a problem. The other side will then respond, stating their potion. In a series of exchanges the two parties will attempt to reach a compromise solution that both sides can agree to. If no agreement can be reached then one of the other methods mentioned above may be perused. Failing that, litigation may be necessary. However, even where litigation has been started, it should be noted that most cases are settled through negotiation before the case comes to trial.
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