Presentation Transcript

1. English for Lawyers 1

   Lecturer: Miljen Matijašević G10, room 6/I, Tue 11:30-12:30 e-mail: miljen.matijasevic@gmail.com Session9, 13 Dec 2013
2. Today’s session Revision of the last session Civil Procedure inthe UK Vocabularypractice
3. Revision of the last session Legal Aid
4. Revision – Legal Aid Answer the following questions with your partner: What two types of legal assistance do people usually need? What are the means and merit tests? What types of casesusually qualify for free legal aid? What is a Conditional Fee Agreement?
5. Civil Procedure in the UK Unit 9
6. Civil law Concernedwithdisputesbetweenindividuals Actiontakenbytheaggrievedparty
7. Civil Procedure procedure activated when one private citizen or enterprise seeks to bring another to court for a civil wrong against them, such as a breach of contract or a tort TORT – breachof an obligation NOT arising from a contract (e.g. negligence)
8. Civil Procedure Parties in a civil procedure (litigants): CLAIMANT (formerly PLAINTIFF) the person filing a lawsuit DEFENDANT the person being sued
9. Standard of proof in civil trials, the task of the court – to establish whether the defendant is LIABLE the standard of proof: a balance of probabilities i.e. theclaimanthas to prove that it is more likely than not that the defendant is liable
10. Civil Procedure unlike in criminal cases, the State has no interest in the outcome of the case it is up to the claimant to file a lawsuit, UNLESS the State is one of the litigants, i.e. parties to the procedure the interest and task of the State is to enable resolution of a private dispute, i.e. prescribe rules for civil procedures
11. Civil Procedure although a vast majority of disputes do not end up in courts, in the past, courts used to be overburdened with cases, and litigation was infamously slow, complex and expensive Civil Procedure Act (1997) – a radical reform Civil Procedure Rules (CPR) simplify the procedure and provide for cuts in expenses and acceleration of proceedings
12. Starting Proceedings claimantissues/files a claim by filling in the claim form the claim form functions as a summons and is served on the defendant the claim must include the particulars of the claim (details) and specify the remedy sought
13. Starting Proceedings possible remedies COMPENSATION (specified or unspecified monetary sum) INJUNCTION (a court order prohibiting certain conduct) particulars may also include points of law and witness lists claim forms must be served on the defendant within four months
14. Starting Proceedings After he/she has been served, the defendant must within 14 days: admit the claim (using the admission form), file a defence (using the defence form), acknowledge (using the acknowledgment of service form), or file a counterclaim (using the counterclaim form)
15. Starting Proceedings if the defendant fails to choose any of those options, judgment may be given in favour of the claimant defendant may also request a default judgment this is very frequent (3/4 of cases), e.g. in cases where a company is collecting debt from a customer
16. StartingProceedings partiesencouraged to settle Pre-action Protocols – guidelines aimed at resolving disputes before action is taken, i.e. before the cases come to court encouraging the exchange of information and putting the parties into a position to settle fairly only under 20 per cent of civil disputes are ever brought to court if one party obstructs the negotiations, they can be penalized in costs, if the action later comes to court
17. Starting Proceedings ifthecasegoes to trial, theproceduraljudgewilldeterminethetypeof procedure to befollowedand set thetimetable for thetrial Thetypesof procedure are known as REGIMES or TRACKS
18. Allocation to a regime This depends on: the remedy sought, the complexity of facts, law and evidence the number of parties, the importance of the claim to non-parties, etc.
19. Three types of procedure claims allocated to one of three regimes: small claims track for most actions under £5,000, which can be tried in a day fast track for most cases £5-15,000, or over one day’s trial multi-track for claims over £15,000
20. Allocation to a regime small claims and fast track cases tried in county courts multi-track cases tried in either county courts or the High Court of Justice
21. Small claims track usually conducted in a district judge’s chambers judges may choose the procedure to follow: inquisitorial (judge asks most of the questions) adversarial (opening statements, cross-examination of witnesses) judges give formal judgments applying the law and state their reasons orally
22. Fast track standard procedure: disclosure (of documents which adversely affect the case or support another party’s case, or as otherwise required), exchange of witness statements, expert evidence, fixing the trial date
23. Multi-track complex cases, no standard procedure high-profile cases, classactions (involvingseveralclaimantsagainst one defendant) intention is to be flexible potentially high costs of trial – incentive to settle
24. Multi-track the following cases have been suggested for multi-track: those of public importance (e.g. a dyslexic suing her local education authority for failure to diagnose her condition) test cases (e.g. ex-miners suffering from respiratory diseases winning a case against British coal, which encouraged many others to claim compensation in 1988) clinical disputes (a.k.a. medical negligence) cases with the right to jury trial (e.g. contested divorces, contested probate cases, fraud, defamation, etc.)
25. Basic trial procedure (fast/multi-track) Claimant/claimant’s advocate makes their opening speech. Claimant’s witnesses/expert witnesses are cross-examined, reports and documents are analysed Defendant/defence advocate makes their opening speech Defence witnesses/expert witnesses are cross-examined, reports and documents are analysed Closing speeches by the parties or their representatives Judge delivers judgment or sums up the evidence to the jury (if present) and they reach a verdict. Judge usually makes an order. Judge hears arguments on costs an makes an order as to costs. Judge hears applications for permission to appeal. Trials are recorded and transcripts may be requested.
26. “No case to answer” at the end of the claimant’s evidence in the trial, the defendant may submit to the court there is “no case to answer” this means he considers that the claimant’s case has no real prospect of success if the court agrees, it will uphold that submission and make a ruling in favour of the defendant
27. Key vocabulary breach of contract tort claimant defendant liable - liability balance of probabilities file a claim summons service (to serve the claim ON the defendant) remedy compensation injunction counterclaim small claims track fast track multi-track inquisitorial procedure adversarial procedure disclosure "no case to answer"
28. Vocabulary practice
29. adversarial - disclosure – claim form – counterclaim admission – inquisitorial - witness statement The document in which the defendant makes a claim against the claimant: .............. The document in which the defendant agrees to the claim made by the claimant: the form of .............. The document starting a claim proceedings : ............... The system of justice in which each side collects and presents their own evidence and attacks their opponent by cross-examination: ............... The process by which the claimant is required to inform the defendant of documents they hold relevant to the claim: ............... The document giving evidence by someone who saw or heard something critical to the case ............... The system of justice in which the judge asks most of the questions: ...............
30. Answers The document in which the defendant makes a claim against the claimant: COUNTERCLAIM The document in which the defendant agrees to the claim made by the claimant: the form of ADMISSION The document starting a claim proceedings : CLAIM FORM The system of justice in which each side collects and presents their own evidence and attacks their opponent by cross-examination: ADVERSARIAL The process by which the claimant is required to inform the defendant of documents they hold relevant to the claim: DISCLOSURE The document giving evidence by someone who saw or heard something critical to the case WITNESS STATEMENT The system of justice in which the judge asks most of the questions: INQUISITORIAL
31. Thank you for your attention!