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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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