Civil Procedure

Grigoryan Anna YY19-06B

Civil Procedure Rules in the UK

Civil procedure is the body of law that sets out the process followed by courts when hearing cases of a civil nature (civil actions).

These rules govern:

• how a lawsuit may be commenced,

• what kind of service of process is required

• the types of pleadings

• applications and orders allowed in civil cases

• the conduct of trials

• various available remedies

• how the courts and clerks must function

In the UK, in 1999 the Woolf reform.

Lord Woolf`s report concluded that civil justice was in a state of crisis 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.

The Civil Procedure Rules apply to all cases commenced after April 26, 1999 and are used by several types of courts.

1. the Divisional Courts of the High Court of Justice (More complex civil cases)

   1. the Family Division

   2. the Chancery (property and money cases)

   3. the Queen`s Bench Division (cases involving contracts and negligence).

These also have the capacity to hear appeals from lower courts and tribunals (which decide the rights and obligations of private citizens towards each other and a public authority and are inferior to the courts) and bind the courts below them in the hierarchy.

2. The Civil Division of the Court of Appeal (presided over by the Master of the Rolls) can reverse or uphold a decision of the lower civil courts. (Because the volume of cases coming to the Court of Appeal is higher than that to the Supreme Court, the Master of the Rolls has been said to be the most influential judge in England.)

3. The Supreme Court,

   1. as the court of last resort, hears appeals on points of law of general public importance from many areas:

      1. commercial disputes

      2. family matters

      3. judicial review claims against public authorities

      4. issues under the Human Rights Act 1998

Civil cases may leapfrog from the High Court to the Supreme Court, bypassing the Court of Appeal. Appellants must, however, apply for leave to appeal.

4. The County Court (or the Small Claims Court) deals with all but:

   1. the most complicated claims for debt repayment

   2. personal injury

   3. breach of contract

   4. family issues

   5. housing disputes

   6. cases between people or companies who believe that someone owes them money.

5. The magistrates’ courts also deal with many civil cases:

   1. mostly family

   2. matters plus liquor licensing

   3. betting and gaming work

Civil Procedure in the United States

Civil procedure in the United States has distinctive features:

1. Adversarial model of dispute resolution. The burden is on the parties to present their grievances and defences. The burden is also on the parties to prosecute their grievances and defenses; litigation stops unless the parties pursue it.

2. Dominated positive law (codified rules enacted by legislatures or their delegates).

One difference between positive and common law lies in the materials containing the legal rules:

1. The common-law materials are almost entirely judicial opinions.

2. Positive law materials are enacted laws or procedural rules and legislative history

Not always easy to subordinate the comparatively freewheeling policy-oriented analysis of common law:

• positive law

• principles of statutory construction

• reading of legislative history (for understanding much of civil procedure)

Significantly, practicing lawyers rank “knowledge of statutory law” as the most important knowledge for practice, just ahead of “knowledge of procedural rules”.

3. The purpose of civil procedure is (the Federal Rules of Civil Procedure state) “to secure the just, speedy, and inexpensive determination of every action and proceeding”.

The 1993 amendment to Rule 1 requires the rules to be “administered” — as well as “construed” (the original term) — “to secure just, speedy, and inexpensive determination of every action and proceeding.”