14. Civil procedure in the uk

Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced, what kind of service of process (if any) is required, the types of

pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function.

In the UK, in 1999 the Woolf reform radically overhauled procedure in the civil courts, as

the civil justice system was slow, expensive, bound by archaic procedures, excessively complicated and generally ill-suited to the needs of clients. Lord Woolf`s report concluded that civil justice was in a state of crisis and recommendations were made for sweeping changes. Therefore, the Civil Procedure Rules (CPR) were enacted in 1998 to improve access to justice by making legal proceedings

cheaper, quicker, and easier to understand for non-lawyers.

One of the main features of the reforms is that the management of the case was removed from the hands of the litigants and passed to the judge. Under this new system of judicial case management the judge’s active management of the case requires him to do the following:

􀁸 encourage the parties to settle the case or part of the case;

􀁸 to identify the true points at issue as early as possible and ensure that issues which do not require litigation are disposed of before the case is tried;

􀁸 and to ensure that the case proceeds quickly and efficiently.

Technology should be used wherever appropriate. As many aspects of the case as possible should be dealt with on the same occasion and the case may be dealt with without the parties having to attend the court. Procedural errors are not to invalidate any part of the proceedings unless the court exercises its

discretion to order that they should. Furthermore, accidental errors or omissions can be corrected at any time and the court may do this on its own initiative.

The parties should consider whether some form of alternative dispute resolution (ADR) would be more suitable than litigation, and if so, endeavor to agree which form to adopt. Both the claimant and the defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that; claims should not be issued prematurely when a settlement is still actively being explored. Among the most frequently used ADR methods one should mention the following:

􀁸 arbitration, where an independent, impartial third party hears both parties to a dispute and makes a decision to resolve it. However, arbitration is private rather than public, and some forms of arbitration

are decided on the basis of documents only. In most cases, the arbitrator’s decision is binding on both parties.

􀁸 mediation, where the disputants, not the mediator, decide the terms of the agreement. The mediator’s role, however, is to check carefully that the parties are able to do what they agree to do. Mediation is now the most popular form of alternative dispute resolution in the UK and Europe as it offers solutions beyond those that a court could ordinarily impose. It is increasingly used in commercial, personal

injury and clinical negligence cases.

􀁸 conciliation involves an impartial third party helping the parties to resolve their problem. They are free to agree to the resolution or not. In consumer disputes, conciliation is the first stage in the arbitration

process and the conciliator is usually a member of the trade association.

􀁸 adjudication, where an independent third party considers the claims of both sides and makes a decision. Adjudicators are usually experts in the subject matter in dispute and are not bound by the rules of litigation or arbitration. Their decisions are often interim ones, i.e. they can be

finalized using arbitration or another process. Adjudication decisions are usually binding on both parties by prior agreement.

􀁸 expert determination, where an independent third party considers the claims and issues a binding decision. The third party is usually an expert in the subject of the dispute and is chosen by the parties, who agree at the outset to be bound by the expert’s decision. It can be most suitable for determining technical aspects of a complex dispute.