Discuss the problems of using the courts to solve civil disputes.

The variety and complexity of cases and grievances leading to civil disputes can make using civil courts a complicated and expensive procedure.

Grade: A-C | £0.00.

An essay which looks at the problems associated with using the courts to settle civil disputes. It looks at the Civil Procedure Rules introduced by Lord Woolf to reform the procedure and some of the issues raised in using the civil court route.

There are links available which will enable you to do further independent research and enhance your understanding of the problems involved.

 

(Word Count 1179)

 

There are a range of problems that are associated with using the civil courts. This does not necessarily mean that in all civil disputes or cases all of these criticisms or problems will arise in any one individual case.

 

It is argued that the procedures and rules to be followed when presenting a civil dispute before the courts can result in a very heavily front loaded approach in terms of both the workload and costs. This is particularly so of personal injury claims and comes from the expectation that any proceedings are supported by detailed statements of claim and defence. This may mean that experts are retained in the early stages of the proceedings and are expected to provide expert opinions in support of their client's claim. The basis is that claims must have merit, and one way for this to be achieved is for experts to be used early on in the proceedings.

 

Civil proceedings are subject to lengthy and complex rules and procedures which are found in the Civil Procedure Rules. Such rules have been developed over a period of time and have even now been subject to yet more changes. Numerous amendments have been made, and require careful attention at all times if they are to be followed properly. Any breach in the rules may result in the opposing party making an application and drawing this breach to the attention of the court resulting in further time being taken to hear the application and incurring even more costs.

 

There are time limits imposed at most stages of the proceedings. This is particularly so in relation to case management and the trial judges' directions and timetable which must be followed when getting the case ready for trial. The result is that considerable care needs to be taken over such matters, as an opposing party may seek to put the other side at a disadvantage if they can. The time limits are strictly enforced and in some circumstances the claim may be struck out for non compliance with the time limits (Vinos v Marks and Spencer Plc (2000)). The strict adherence to time limits is likely to be most noticeable when a case reaches the pre-trial directions stage at which point the issues are identified and the number of expert witnesses are agreed upon.

 

The Woolf reforms were introduced by Lord Woolf in 1996 and the Civil Procedure Rules eventually came into being on 26th April 1999. Since the reforms, the procedures, requiring pre action protocols, allocation questionnaires and proactive case management by trial judges, require additional time and attention as well as cost but at times seem to add little value to the proceedings. The Civil Procedure Rules put the responsibility on the judiciary to ensure cases were dealt with justly, and also recognised the complexity of the civil justice system by recognising the need for a flexible approach to different situations.

 

We still have an adversarial approach whereby one side tries to score legal points against the other side. It is about winning and not compromising. In some situations this makes it difficult in commercial cases for businesses to 'save face' especially if the basis of the claim against them attacks their business products or processes.

 

It is argued that this adversarial approach is not conducive to future business and this is one of the reasons why some may prefer Alternative Dispute Resolution (ADR) as a way of resolving the dispute in private and outside the framework of the courts. Civil litigation is a very public way of resolving disputes and could be said to be akin to 'washing your dirty linen in public' whereas ADR is conducted in private. However the Woolf Reforms have resulted in greater cooperation between the parties and their legal advisers but it is worth noting that the use of ADR has increased over recent years.

 

The civil courts are still very formal. This may be because the courts and the legal system generally realise that the law and court proceedings need to be taken seriously if legal contracts and other civil matters are to be treated credibly. Civil proceedings do not have the same consequences as civil disputes but it is still essential that rulings and judgements are recognised properly for what they are. As a result such proceedings can be very formal and this may be intimidating for some parties and their witnesses. Therefore it could be argued that civil disputes can still be a daunting prospect in terms of the formalities and the time consumed. Delays are still a common complaint.

 

Civil litigation is very much paper driven. The judge is obviously qualified to deal with the relevant law surrounding the issues of the case but judges are not experts as to the subject matter itself and the facts of the case are brought out in evidence. In this regard the judge is very much in the hands of the parties and their legal advisers as to how well and how long the presentation of the case may take. Whereas in arbitration, one of the methods of ADR, the arbitrator appointed is deliberately selected from a number of people who have considerable expertise in the area of the subject of the dispute. This is seen as a clear advantage over the use of the courts.

 

Irrespective of the merits of any case there can be little prospect of success if the claimant has limited funds with which to pursue their claim. Equally, the saying ' there is little point in suing a man of straw' is as valid today as it ever was. This is exacerbated by the lack of legal funding for small claims, and even for larger claims funding is limited as the government continues to grapple with questions of public spending priorities. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduces a wide range of reforms and limitations to the availability of legal funding in civil matters.

 

The fact that a claimant is successful and obtains a judgement against the other party is still no guarantee that the award will be paid. This applies particularly to small claims and the resulting problems and difficulties of enforcing the payment of small claims judgements is having an effect on the number of claims as those involved question whether such proceedings are worthwhile. Increases in court fees are also said to be having an effect.

 

It could be argued that whilst the improved procedures for dealing with fast track cases which deserve to reach trial as quickly as possible and multi track cases which warrant the early identification of the issues have resulted in benefits, this has not extended to small claims hearings. It would seem that higher priority is given to trials and the progress of small claims is thought to have suffered as a result of this change in emphasis.

 

It can be seen that far from being a complete solution to the problems associated with the use of the civil courts, one can understand that they are probably regarded as a qualified success.

 

Civil cases - Open Justice - Ministry of Justice

Legal Aid, Sentencing and Punishment of ... - Legislation.gov.uk

 

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