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English for Lawyers 1. Lecturer: Miljen Matijašević G10, room 6/I, Tue 11:30-12:30 e-mail: miljen.matijasevic @ gmail.com Session 9, 13 Dec 2013. Today’s session. Revision of the last session Civil Procedure in the UK Vocabulary practice. Revision of the last session. Legal Aid.

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english for lawyers 1

English for Lawyers 1

Lecturer: Miljen Matijašević

G10, room 6/I, Tue 11:30-12:30

e-mail: [email protected]

Session9, 13 Dec 2013

today s session
Today’s session
  • Revision of the last session
  • Civil Procedure inthe UK
  • Vocabularypractice
revision legal aid
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?

civil law
Civil law
  • Concernedwithdisputesbetweenindividuals
  • Actiontakenbytheaggrievedparty
civil procedure
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)
civil procedure1
Civil Procedure
  • Parties in a civil procedure (litigants):
    • CLAIMANT (formerly PLAINTIFF)
      • the person filing a lawsuit
    • DEFENDANT
      • the person being sued
standard of proof
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
civil procedure2
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
civil procedure3
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
starting proceedings
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
starting proceedings1
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
starting proceedings2
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)
starting proceedings3
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
starting proceedings4
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
starting proceedings5
Starting Proceedings
  • ifthecasegoes to trial, theproceduraljudgewilldeterminethetypeof procedure to befollowedand set thetimetable for thetrial
  • Thetypesof procedure are known as REGIMES or TRACKS
allocation to a regime
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.
three types of procedure
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
allocation to a regime1
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
small claims track
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
fast track
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
multi track
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
multi track1
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.)
basic trial procedure fast multi track
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.
no case to answer
“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
key vocabulary
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"

adversarial disclosure claim form counterclaim admission inquisitorial witness statement
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: ...............
answers
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
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