County Court

There are over 200 County courts in the UK. This court hears nearly all types of civil cases.

Cases in the County court may be heard by either a District Judge or Circuit Judge. A District Judge is a full time judge who deals with most of the cases in the County court. Circuit judges are more senior and will have been either Recorders in criminal cases or full time District judges in civil cases.

High Court

This court is split into three divisions:

· Queen’s Bench

· Chancery

· Family.

Each of these divisions have a different jurisdiction.

Queen’s Bench Division

This division’s main work is hearing contract and tort cases where the amount claimed is over £100,000 or personal injury claims worth over £50,000. The court also deals with specialist areas of law e.g the Commercial court deals with banking and insurance law, the Mercantile court deals with commercial and business disputes and the Admiralty court deals with shipping matters such as collisions at sea.

Chancery Division

This division hears disputes involving land, wills and insolvency.

Family Division

Cases involving some aspects of divorce, children’s welfare and medical treatment are heard here. Most family matters are now dealt with in the Family Law courts. For example the recent case of Archie Battersbee started in the Family Division.

Cases in the High Court are heard by High Court judges.

Appeal judges to consider latest stage of Archie Battersbee’s life support fight

Court of appeal judges are preparing to consider the latest stage in the dispute over whether the treatment keeping Archie Battersbee alive should continue.

The Court Process

When cases are brought in either the County or High court, the parties will follow the Civil Procedure Rules 1998. This means that the claimant will being the claim using a claim form which is served on the defendant who may either choose to agree to pay the amount claimed or choose to defend the claim.

If the defendant chooses to defend, the court will allocate the case to one of the three tracks. The tracks are not courts but are part of the process that the parties must follow to get their case to trial.

The three tracks are:

· Small claims track

· Fast track

· Multi track.

The cases are allocated to tracks based on how complex the case is and the value of the claim.

Small claims track

1. This track is in the County court only.

2. Value of up to £10,000 for debt etc claims.

3. Value of up to £1,000 for personal injury claims

4. Trials should be withing 6 – 9 months of starting proceedings.

5. Parties represent themselves.

6. Trial generally heard in private.

Fast track

1. This track can be in both the County court and High court.

2. Value of cases between £10,000 - £25,000.

3. Takes up to 1 year to get to trial.

4. Parties comply with standard rules.

5. Trial lasts no more than one day.

Multi track

1. Value of cases is above £25,000

2. It can take longer than 1 year to get to trial.

3. There is no standard process to follow the judge will decide the relevant steps for each party.

4. Trials take longer than one day.

ALTERNATIVE DISPUTE RESOLUTION (ADR)

Not all cases that are brought against someone will end up at trial because they will have been settled through the use of Alternative Dispute Resolution (ADR). This is actively encouraged by the courts, particularly in the last twenty years. This is because it is cheaper, simpler and more accessible. The disputes are dealt with in private which businesses prefer as any hearings are not given publicity which protects the business’s reputation.

In recent years, ADR processes have improved through e.g. ADR for Consumer Disputes (Amendments) Regulations 2015. These regulations ensure that businesses selling products to consumers tell them about using ADR to resolve problems.

There are several types of ADR:

· Negotiation

· Mediation

· Conciliation

· Arbitration

Negotiation

Negotiation is where the parties resolve a dispute themselves. They can reach a settlement by negotiating with each other. It is all about give and take and reaching an outcome that benefits both parties. Usually there will not be a third party involved but sometimes they may ask a legal representative to help them reach a compromise. This can happen where court proceedings have already begun or to prevent court proceedings being started. When legal representatives are involved, they must be paid.

The payment of a legal representative’s costs can be a problem because often, there is no legal funding available. This means that a person will have to pay the costs themselves which can be expensive. Unless the negotiation is part of the court process the settlement is not legally binding so there is nothing a party can do if the other party does not carry out the agreement.

Negotiation can be used e.g in neighbour disputes, debt problems and personal injury cases when the legal representatives are trying to decide how much compensation should be paid.

Mediation

Mediation focuses on working on the parties’ relationship and is confidential. The parties use an impartial person to reach a compromise. This person is called the mediator. Their role is to help the parties identify and understand the issues between them. The mediator will ask what each party needs to settle the matter. Any information given to the mediator is confidential unless the parties agree otherwise. The mediator will not give an opinion about they think should happen but will attempt to help the parties come to a settlement.

The mediation process is agreed by the parties and they can withdraw at any time. The mediator will meet with each party privately and they present relevant written mater

but there are no formal rules about the presentation of evidence. Both parties must agree on any decision but it is not legally binding.

Mediation is cheaper than court proceedings but there is some cost involved. The amount to be paid depends on how much the mediator charges. ACAS provides free mediation in cases involving the workplace. Mediation can be compulsory as part of divorce proceedings where children are involved. Legal funding from the government is available for Family Mediation.

Conciliation

Conciliation is very similar to mediation. A neutral third party helps the parties to resolve the dispute but the conciliator will play a more active role as they will suggest a compromise. Again, ACAS can provide conciliators for free in employment cases but generally the parties will pay for the conciliator themselves. Like mediation, the conciliation process must be agreed by the parties. They can withdraw at any time and must agree any decision made. The agreement is not legally binding.

Conciliation is used mainly in relation to employment related issues.

Arbitration

Arbitration is the most formal type of ADR. Here, the parties agree for the claim to be settled by an independent person. This person will make the decision about the issue and the parties have no say in the outcome. The law relating to arbitration can be found in the Arbitration Act 1996.

The agreement to go to arbitration can be made at any time. This decision can be made even before the dispute arises because of a clause in a contract which states that if there is a dispute in the future, the matter has to go to arbitration rather than through the court system. This clause is called a Scott v Avery clause. You can find these clauses in insurance or holiday contracts.

An arbitrator will be responsible for making the decision on behalf of the parties. most agreements proposing arbitration will either name a specific arbitrator/body or set out the method of choosing an arbitrator. There may be one arbitrator or a panel of arbitrators.

The arbitration process is agreed by the parties – it can range from a paper-based arbitration to a full hearing with witnesses. The decision that is made is called an award. The award is legally binding so it can be enforced through the courts if the defendant does not pay it. There are limited opportunities to appeal against the award.

The small claims track in the county court is a type of arbitration. If a case in the small claims track reaches trial, it will be informal hearing. The only people present will be the district judge and the parties with no legal representation. The parties are encouraged to represent themselves because it is not generally possible for the loser to pay the winner’s costs in an arbitration and so the winner will have to pay for their own representation.

What do legally qualified people do in civil cases?

· Solicitors

Solicitors are usually the first legal representative to be consulted when someone is thinking of making a civil claim. They will do everything necessary to prepare the case including taking statements from the client and witnesses, obtaining medical or other expert evidence, issuing or filing a defence and attending any pre-trial court appointments.

The solicitor will either represent the client at trial if it is in the County court (or if it is in the higher courts, but only if the solicitor has an advocacy qualification). If the solicitor does not have an advocacy qualification, s/he will need to brief a barrister for the trial.

Often, the solicitor will try to settle the case by negotiating with the other party or their legal representative.

· Barristers

Barristers spend most of their time representing a client in court. They may appear in all courts in the legal system as they have full rights of audience. However, they have other tasks to do such as drafting court documents and letters for the client, advising about evidence and the client’s chance of success and researching points of law. When representing a client in court, the barrister will present the evidence, and examine and cross examine witnesses.

Barristers are usually contacted through the solicitor using the cab rank rule (a client is given the first barrister who is available) but since 2004 the public can contract a barrister directly.

Other sources of advice

· Citizens’ Advice Bureau

The CAB is an independent advice charity that gives free and confidential advice. They specialise in assisting with legal, debt, consumer and housing problems.

· Insurance company

A lot of insurance policies such as house and car insurance offer legal expenses insurance. This means that the insurance will instruct a lawyer on the client’s behalf.

· The internet

The internet has plenty of sites that give advice on legal matters. However, it is important that the information is accurate and relates to UK law. The Law Society’s website is a good starting point.

SOURCES OF FUNDING

As the cost of taking/defending a court action can be expensive, a solicitor will need to make sure that the client can afford to pay all the costs connected with it.

The most common ways that a person pays their costs are:

· Own resources (savings etc)

· Insurance

· Pro bono

· Conditional fee agreements (no win, no fee agreements)

· Own resources

That is, the client uses their own money to pay the legal fees. It is important for a client to shop around as charges vary between firm and solicitors.

For example, in the case of JXA (by his mother and litigation friend VLA) v Kettering General Hospital [2018] JXA suffered quadriplegic cerebral palsy because of the negligence of hospital staff during his birth. Damages and the costs of the case were expected to be about £20million. The judge had to decide how much the solicitors’ costs should be.

Judge Goss split the solicitors involved into three bands: a partner could charge £350 ph, an assistant solicitor could charge £200ph and a trainee solicitor or paralegal could charge £150 per hour.

· Insurance

Legal expenses insurance covers the cost of legal advice and the cost of bringing or defending a court case. E.g. car insurance will only cover legal expenses in negligence cases caused by using the car but the insurance company will not get involved in case unless there is ‘a reasonable chance of success’.

· Trade Union memberships

Trade Unions provide legal services for their members for e.g. employment issues or accident claims. E.g. the NEU one of the teaching unions gives free advice on workplace issues both online and over the phone.

· Pro bono work

‘Pro bono’ means for the good of. It is when solicitors and barristers offer their services free of charge in order to assist people with areas of law that they feel are worthy and needed in the interests of justice. ALAS (Accident Legal Advice Service) is a scheme run by solicitors to help accident victims claim compensation. Huddersfield University has a Law clinic which is run by students and deals with a range of legal issues such as charity law, child law, domestic violence, housing and welfare benefits. Advice is provided free of charge if the client cannot afford a lawyer e.g. they earn less than £25,000.

· Conditional fee agreements (no win, no fee agreements)

The rules relating to this type of agreement are set out in LASPO 2012 and the Conditional Fees Order 2013. CFAs are usually used where the client is making a claim in relation to personal injuries.

When the client enters into a CFA, they must pay for after the event insurance. This is an insurance policy that is taken out after an incident has occurred. If the case is lost the insurance company will pay the client’s opponent’s legal costs and expenses. If the case is won the opponent will pay the cost of the insurance policy as well as any other legal costs.

If the client wins the solicitor is able to charge a success fee. This is an amount over the usual legal fees. It is intended to compensate the solicitor for the risk of not being paid at all if the client loses. The success fee can be up to 100% of the usual fee but not more than 25% of the compensation. The success fee is paid by the loser if the client wins.

JUDICIAL PRECEDENT

Judicial precedent is simply case law or judge made law. The role of a judge is to interpret the law but they can also create law through the system of judicial precedent. It is a system where judges follow previous decisions where the facts of the case are the same. The system of judicial precedent is based on the idea that the law must be just, fair and certain.

The judge’s decision is called a judgment and it is made up of two parts:

· Ratio decidendi

· Obiter dicta

The ratio decidendi is the legal reason for the decision. It creates a binding precedent which means that it must be followed in later similar cases.

The obiter dicta (other things said) is the judge’s opinions about the law and how the outcome could have been different if the facts were slightly different. It creates a persuasive precedent which it may be followed in later similar case.

The Hierarchy of the Courts

The courts apply the rules of precedent very rigidly and it is based on the court hierarchy. The rules are:

· Every court is bound to (must) follow any decision made by the court above it in the hierarchy.

· The appeal courts are bound by their own previous decisions. However the CA (Civil Division) and CA (Criminal Division) do not bind each other.

The Supreme Court is the highest court in the hierarchy. It will generally follow its own previous decisions but in certain circumstances, it may refuse to do this.

How does precedent work?

When a judge is deciding a case she or he will look to see if there are any previous decisions with similar facts. If there are, the judge will have to choose one of five options in relation to that decision:

Follow it

Overrule it

Reverse it

Distinguish it

Follow

If the previous similar case is binding then it must be followed.

Overruling

This is where a judge in a later case states that the legal principle in a previous case is wrong.

Overruling usually happens when a superior court changes a decision in a previous case that has come from an inferior court. However, both the SC and CA can overrule their own previous decisions but special rules apply. The SC can overrule its own previous decisions if it is right to do so. The cases below illustrate this.

Reversing

This occurs where a court higher in the hierarchy in an appeal changes the decision of a lower court in the same case. E.g. the CA may change the decision of the High Court.

R v Cannings

Angela Cannings was convicted of the murder of her two sons who died in 1991 and 1999. Her first child Gemma had died of SIDS in 1989. Her conviction was based on claims she had smothered the children and controversial claims about SIDS made by paediatrician Roy Meadow, specifically concerning the unlikelihood of multiple children in a family dying from SIDS. Fresh evidence was introduced on appeal showing a genetic inheritance was the most likely explanation for the deaths. Her conviction was reversed by the Court of Appeal.

Distinguishing

This is a method of avoiding a past decision that would otherwise have to be followed. The judge in the later case will look for differences in the material facts. If there are enough differences the previous decision may not be followed. It can be used by judges in the lower courts to avoid binding precedent from superior courts.

NEGLIGENCE

The law of negligence is a tort (a civil wrong) which allows someone claim for compensation (damages) if they have been injured or if their property has been damaged by someone else who has a duty to take care of them. According to Donoghue v Stevenson three elements need to be proved to establish negligence.

The three elements are:

1. A duty of care must be owed by the Defendant (D) to the Claimant (C);

2. The duty must be breached (broken) by the D; and

3. The broken duty must have caused the damage or injury.

Duty of care

The current rule relating to when a duty of care is owed is set out in the case of Robinson v CC of West Yorkshire Police.

The rule states that if there is an existing similar previous case or Act of Parliament setting out a duty of care that case or Act must be followed.

If there is no previous case or Act of Parliament, then the test in Caparo v Dickman must be used to decide if there is a duty of care.

A duty of care has already been established between the following individuals and organisations:

1. Employer – employee: Wilson and Clyde Coal Co v English, Walker v Northumberland CC

2. Doctor – patient: Bolam v Friern

3. Driver – pedestrian, passenger, other road user: Nettleship v Weston

4. Ambulance service/rescue service – patient: Kent v Griffiths

These cases can be used as a precedent when using the rule in Robinson. However, there are other cases that you can use in this booklet.

Kent v Griffiths

C suffered from asthma. During an attack, an emergency ambulance was caused. The wait was much longer than normal and there were no good reasons for the delay. C stopped breathing before she got to hospital. The court decided that an individual patient who called an ambulance would be owed a duty of care. This was because it is likely that unnecessary delay could result in harm to the patient.

Breach of duty

Once it has been shown that a duty of care is owed to C, the next step is to prove that the duty of care has been broken (breached). A breach happens when D does not reach the standard of care that a reasonable person would when doing something competently. The standard of care is objective because the D is compared with the reasonable man.

Negligence is failing to do something which the reasonable person would do or doing something which the reasonable person would not do.

Who is the reasonable man?

The reasonable man is someone who is sensible when doing something which carries a risk of some kind.

In Wells v Cooper the C was closing the door in a strong wind and the door handle came away. C fell down the steps and was injured. The handle had been fitted by the owner of the house who was not a professional carpenter. He was only competent at DIY jobs. C’s claim failed because the D was judged against what a reasonable person would do. He met that standard.

Risk factors to be considered when deciding if there is a breach of duty

These are factors which a reasonable person would take into account and make them change their behaviour. If the person does not change their behaviour when a risk factor is identified, the court is more likely to say that there has been a breach of duty. It must be remembered that you cannot take precautions against every outcome – it is not possible to do this.

The list of risk factors are:

· Special characteristics that C may have;

· The risk of harm;

· Social usefulness (utility); and

· Taking precautions.

The case you need to know here is Paris v Stepney Borough Council. Mr P had been almost blinded in one eye in World War 2. He got a job with Stepney BC as a mechanic. He did not tell him about his blindness until he had to have a medical examination. However, once the council did find o40ut, he was not provided with goggles. When he was working on a vehicle a splinter went into his good eye and he lost the sight in that eye also.

The court decided that the standard of care should be higher because the employer knew of the increased risk of injury to P.

· Risk of harm

The greater the risk of harm, the more care the reasonable person must take so that there is not a breach of duty. However, if a risk is minimal then not many precautions need to be taken.

Bolton v Stone

S was hit by a cricket ball that had been hit out of a cricket ground. The ground had a 2m fence beyond the boundary line. Evidence showed that the ball had been hit out of the ground six times during a 30 year period. S lost her claim because the risk of harm was very low and the cricket club had done what it could be putting up the fence.

Miller v Jackson

A new housing estate was built near a cricket ground. The club put up a fence 5m high to stop the balls going into gardens. Despite this, 15 balls had gone out of the ground in a 2 year period. The court said that adequate precautions had not been taken because of the amount of times that the ball had gone into gardens.

· Social usefulness (

This factor concerns the benefits to society if a risk is taken. This usually relates to emergency situations where normal precautions may be ignored.

Watt v Hertfordshire County Council

A woman was trapped under a heavy vehicle not far from a fire station. The fire service sent out an ordinary lorry with a jack with the firemen on the back of it. The usual specialist equipment was being used elsewhere. On the way to the woman, the jack slipped and injured one of the men. The claim failed because breach of duty is less likely to occur if the injury happens while dealing with an emergency. Here, saving the woman was the more important than using the correct equipment.

· Taking precautions

The reasonable person takes everything in their power to prevent any injury or damage. However, if the precautions would be over the top compared with the level of the risk then the reasonable person does not have to carry out those precautions.

An example of this is Latimer v AEC.

Very heavy rain flooded the factory where L worked. The company did everything it could to clear up the water and oil that covered the floor. They used brushes and all available sawdust they had, and they put up warning signs. However, one small area of the factory

was not cleaned. L slipped in this area when he arrived at work. His claim failed because the only other precaution could be taken and that was shutting the factory. In the circumstances, this was not reasonable. The court said that the reasonable person does not have to totally eliminate a risk. This means that C need only do as much as the reasonable person would do in those circumstances.

However, there are categories of people who have different tests. These are:

1. Professionals;

2. Learners; and

3. Children (under 18).

1. Professionals

To prove a professional person’s breach of duty, their behaviour must fall below the standard of a reasonably competent professional in the same area of expertise. e.g a surgeon will be compared with another surgeon.

However, this test recognises that there may be more than one way of carrying out a task. This is shown in the key case of Bolam v Friern Hospital Management Committee. Mr B was a patient in a mental health hospital. He agreed to have electric shock treatment. He was not given a muscle relaxant and he was not restrained in any way. When he had the treatment he suffered a hip fracture because of the violent movement of his body.

He did not succeed in his claim because the doctor’s duty had not been breached because the doctor reached the standard required. He had acted reasonably in the circumstances even though other doctors would have carried out the procedure in a different way.

2. Learners

The standard of care of someone learning a skill or profession is that of a reasonably competent person with that skill or of that profession. The key case here is Nettleship v Weston which is a case about a learner driver.

Mr N gave a friend’s wife driving lessons. He was an experienced driver. Before giving her the lesson, he checked that she had insurance. On her third lesson, she crashed into a lamppost and he broke his leg. The court decided that learner driver is responsible and owes a duty of care to people in the car and on or near the road.

3. Children

The standard of young people is decided by comparing the care taken with that of an ordinary young person of the same age and experience. This is set out in the case of Mullins v Richards. The case involved two 15 year

with two plastic rulers. One of the rulers snapped and a piece of plastic went into M’s eye and she became blind. R was not in breach of her duty to M because she was only expected to meet the standard of a reasonable 15 year old.

Causation

The third element of negligence that needs to be proved is that the breach of duty caused the harm suffered by the claimant. C will have to prove that there is a link between their harm and the D’s act or omission. This is called the chain of causation. There are two types of causation:

· Factual causation

· Legal causation

· Factual causation

The test that the courts use here is the ‘but for’ test. The question the court asks itself is:

“But for the defendant’s act or omission, would the injury or loss have occurred?

If the answer is no, the D is not liable but if the answer is yes, D is liable.

The test came from the case of Barnett v Chelsea and Kensington Hospital Management Committee.

Three night watchmen (security guards) went to A and E because they were vomiting after they had drank some tea. The doctor that was on duty did not examine the men and suggested that they go to see their own doctors. One of the men went home and died after a few hours. He died of arsenic poisoning. His family claimed that the hospital doctor had breached his duty of care by no examining Mr B. However, the evidence showed that even if the doctor had examined him, he could have done nothing to save Mr B’s life. So, the cause of the death was the poisoning, not the doctor’s failure to do his job. There was no factual causation.

Sometimes, something will happen that will break the link between the D’s act or omission and C’s harm or injury. This is called an intervening event or act. The intervening act will become the cause of the harm not the D’s behaviour. The intervening act will break the chain of causation.

The key case here is Knightly v Johns.

J caused a crash on a dangerous bend in a road tunnel. The police inspector at the scene should have closed the tunnel to traffic but forget to do so. He ordered K to ride back on his motorbike against the flow of traffic. As he did, K was involved in a separate crash and was injured. The second accident broke the chain of causation so J was not liable for the injuries to K.

· Legal causation (remoteness of damage)

After factual causation has been proved, C has to show that the harm or injury caused is reasonably foreseeable. This is called the test of remoteness of damage. This test establishes exactly what harm the D is responsible for.

The idea is that the reasonable person could foresee the type of damage that occurred.

This test comes from The Wagon Mound No 1. Fuel oil had been negligently spilled from D’s ship into Sydney Harbour. The wind and tide carried the oil towards C’s wharf. C was carrying out repairs to another ship. Two days later, the oil caught fire from the sparks from welding that was being carried out. The fire spread on the oil to C’s wharf and burned it down. The court decided that although it was foreseeable that damage would be caused by the oil spillage, it was not that fire damage would occur. The fire damage was too remote and so D was not liable for this.

As long as the type of damage is foreseeable, the actual form of damage can be extreme as in Bradford v Robinson Rentals. B was sent by his employer to drive a long distance to exchange an old van for a new van during extremely cold weather conditions. Neither of the vehicles had heating and he suffered frostbite. Frostbite is rare in the UK. However, B won his case because injury through exposure to cold was foreseeable (likely).

The thin skull rule

The rule allows the court to take into any account any sensitivity the claimant may have.

Smith v Leech Brain

S was burned on the lip by molten metal. He had an existing pre-cancerous condition. The burn eventually brought on full cancer and S died. LB was liable to pay compensation for S’s death because the court took into account the pre-cancerous condition.

DAMAGES

The aim of damages (compensation) is to put the claimant in the position they would have been if the negligent act or omission had not occurred.

Pecuniary loss

This type of loss is one that can easily be calculated in financial terms e.g. loss of earnings, car repairs, travel expenses, medical expenses.

Non-pecuniary loss

This type of loss is not connected to any type of financial loss but is connected with harm/damage to the claimant e.g. pain and suffering, physical harm, grief, loss of amenity.

Special damages

There are pecuniary losses calculated up to the date of the settlement/trial.

General damages

These are non-pecuniary losses calculated from the trial date. General damages are an unspecified amount to be decided by the court. This type of compensation covers both physical and psychiatric injuries, loss of future earnings, loss of amenity (eg inability to carry out certain activities) and future medical costs.

Compensation can be paid to the claimant either in a lump sum (one off payment) or in a structured settlement. A structured settlement are payments made over a period of time. This gives the claimant financial security in the future.