Multimedia Mania/abacus-multimedia-mania.iso/dp/0052/00523.txt

Text File | 1993-07-27 | 16.1 KB | 307 lines

$Unique_ID{bob00523}
$Pretitle{}
$Title{United Kingdom
Civil Courts}
$Subtitle{}
$Author{Embassy of the United Kingdom, Washington DC}
$Affiliation{Embassy of the United Kingdom, Washington DC}
$Subject{court
courts
cases
civil
appeal
county
high
general
law
lord}
$Date{1990}
$Log{}
Title:       United Kingdom
Book:        Justice and the Law in Britain
Author:      Embassy of the United Kingdom, Washington DC
Affiliation: Embassy of the United Kingdom, Washington DC
Date:        1990

Civil Courts

England and Wales

     The limited civil jurisdiction of magistrates' courts extends to
matrimonial proceedings for custody and maintenance orders, adoption orders,
guardianship orders and family protection orders. The courts also have
jurisdiction regarding public health and the recovery of community charge
debts. Committees of magistrates license public houses, betting shops and
clubs.

     The jurisdiction of the 286 county courts covers actions founded upon
contract and tort (with minor exceptions); trust and mortgage cases; and
actions for the recovery of land. Other matters dealt with by them include
landlord and tenant, adoption and divorce cases. Some cases are determined
in those courts designated as divorce county courts, and outside London
bankruptcies are dealt with in certain county courts. The courts also deal
with complaints of race and sex discrimination. Where small claims are
concerned, especially those involving consumers, there are special arbitration
facilities and simplified procedures.

     Each county court has one or more circuit judges assigned to it by the
Lord Chancellor, and the regular sittings of the court are mostly taken by
them. The judge normally sits alone, although, in exceptional cases, a trial
may be with a jury.

     The High Court is divided into the Chancery Division, the Queen's Bench
Division and the Family Division. Its jurisdiction covers civil and some
criminal cases, and it also deals with appeals. The Family Division is
concerned with all jurisdiction affecting the family, including that relating
to adoption and guardianship. The Chancery Division deals with the
interpretation of wills and the administration of estates. Maritime and
commercial law is the responsibility of admiralty and commercial courts of the
Queen's Bench Division.

     Each of the 80 or so judges of the High Court is attached to one division
on appointment but may be transferred to any other division. In London the
High Courts sits at the Royal Courts of Justice; elsewhere sittings are held
at 26 district registries at county court centres.

     At present all cases above the upper financial limit of the county
courts' jurisdiction-currently 5,000 Pounds in contract and tort-must start in
the High Court. The Courts and Legal Services Bill would enable the Lord
Chancellor to abolish this county court limit and to reserve the High Court
for specialist cases and for general cases of exceptional substance,
complexity or importance. It is expected that in early 1991 an order made by
the Lord Chancellor will require all but the most substantial personal injury
cases to start in a county court. The Bill would also give the county courts
wider powers to grant non-financial remedies such as injunctions.

     New court rules have been introduced to help cut pre-trial delays.

Appeals

     Appeals in matrimonial, adoption and guardianship proceedings heard by
magistrates' courts go to a divisional court of the Family Division of the
High Court. Appeals against decisions of the licensing committees of
magistrates are heard by the Crown Court. Appeals from the High Court and
county courts are heard in the Court of Appeal (Civil Division), consisting
of the Master of the Rolls and 27 Lords Justices of Appeal, and may go on to
the House of Lords, the final court of appeal in civil and criminal cases.

     The judges in the House of Lords are the ten Lords of Appeal in Ordinary,
who must have a quorum of three, but usually sit as a group of five. Lay peers
do not attend the hearings of appeals, which normally take place in a
committee room, but peers who hold or have held high judicial office may also
sit. The president of the House in its judicial capacity is the Lord
Chancellor.

Scotland

     The main civil courts are the Court of Session and the sheriff court. The
sheriff court deals with most civil litigation including all cases with a
value of less than 1.500 Pounds. Appeals may be made to the sheriff
principal or directly to the Court of Session. This does not apply where the
value of the case is under 1,500 Pounds, when an appeal must first be made to
the sheriff principal, who may sanction an appeal to the Court of Session on a
point of law.

     The Court of Session sits in Edinburgh, and in general has jurisdiction
to deal with all kinds of action. It is divided into the Outer House, a court
of first instance; and the Inner House, mainly an appeal court. Appeals to the
Inner House may be made from the Outer House and from the sheriff court. From
the Inner House an appeal may go to the House of Lords. The judges of the
Court of Session are the same as those of the High Court of Justiciary.

     The Scottish Land Court deals exclusively with matters concerning
agriculture. Its chairman has the status and tenure of a judge of the Court of
Session and its other members are lay specialists.

Northern Ireland

     Minor civil cases in Northern Ireland are dealt with in county courts,
though magistrates' courts also deal with certain limited classes of civil
case. The superior civil law court is the High Court of Justice, from which
an appeal may be made to the Court of Appeal. The House of Lords is the final
civil appeal court.

Civil Proceedings

     In England and Wales civil proceedings are instituted by the aggrieved
person. Actions in the High Court are usually begun by a writ served on the
defendant by the plaintiff, stating the nature of the claim. Before the case
is set down for trial in the High Court, documents (pleadings) setting out the
scope of the dispute are filed with the court; the pleadings are also served
on the parties. County court proceedings are initiated by a summons served on
the defendant by the court. In order to reduce delays, the High Court and the
county courts have power to order pre-trial exchange of witness statements
in certain cases. From early 1991, such exchange will be compulsory in most
High Court and county court cases. Courts may impose penalties in costs on
parties who unreasonably refuse to admit facts or disclose documents before
trial.

     A decree of divorce must be pronounced in open court, but a procedure
for most undefended cases dispenses with the need to give evidence in court
and permits written evidence to be considered by the registrar.

     Civil proceedings, as a private matter, can usually be abandoned or
ended by settlement between the parties at any time. Actions brought to court
are usually tried without a jury, except in defamation, false imprisonment,
or malicious prosecution cases, when either party may, except in certain
special circumstances, insist on trial by jury; or a fraud case, when the
defendant may claim this right. The jury decides questions of fact and awards
damages to the injured party; majority verdicts may be accepted. Under the
Courts and Legal Services Bill the Court of Appeal would be able to increase
or reduce damages awarded by a jury if it considered them inadequate or
excessive. At present this can only be done if the parties agree; otherwise
the Court must order a retrial.

     In civil cases heard by a magistrates' court, the court issues a summons
to the defendant setting out details of the complaint and the date on which it
will be heard. Parties and witnesses give their evidence at the court hearing.
Domestic proceedings are normally heard by not more than three lay justices,
including, where practicable, a woman; members of the public are not allowed
to be present. The court may order provision for custody, access and
supervision of children, as well as maintenance payments for spouses and
children. The law is being changed to speed up civil proceedings in
magistrates' courts by allowing written statements, expert opinions and
hearsay evidence to be accepted in court without the presence of the witness
unless the evidence is disputed and the disputing party requests the presence
of the witness.

     Judgments in civil cases are enforceable by the court. Most are for sums
of money and may be enforced, in cases of default, by seizure of the debtor's
goods or by a court order requiring an employer to make periodic payments
to the court by deduction from the debtor's wages. Other judgments can take
the form of an injunction restraining someone from performing an unlawful act.
Refusal to obey a judgment may result in imprisonment for contempt of court.
An arrest under an order of committal may be effected only on a warrant.

     Normally the court orders the costs of an action to be paid by the party
losing it, but, in the case of family law maintenance proceedings, a
magistrates' court can order either party to pay the whole or part of the
other's costs.

     In Scotland proceedings in the Court of Session or ordinary actions in
the sheriff court are initiated by serving the defender with a summons (an
initial writ in the sheriff court). A defender who intends to contest the
action must inform the court; if he or she does not appear, the court grants
a decree in absence in favour of the pursuer.

     In summary cases (involving small sums) in the sheriff court the
statement of claim is incorporated in the summons. The procedure is designed
to enable most actions to be carried through without the parties involved
having to appear in court. Normally they (or their representatives) need
appear only when an action is defended. A new small claims procedure was
introduced in 1988.

     Proceedings in Northern Ireland are similar to those in England and
Wales. County court proceedings are begun by a civil bill served on the
defendant; there are no pleadings in the county court. Judgments of civil
courts and orders in respect of certain civil matters are enforceable through
a procedure administered by the Enforcement of Judgments Office.

Restrictive Practices Court

     The Restrictive Practices Court is a specialised United Kingdom court
dealing with monopolies and restrictive trade practices. It comprises five
judges and up to ten other people with expertise in industry, commerce or
public life.

Administrative Tribunals

     Administrative tribunals exercise judicial functions separate from the
courts and tend to be more accessible, less formal and less expensive.

     A number of important tribunals decide disputes between private
citizens-for example, industrial tribunals have a major role in employment
disputes. Some (such as those concerned with social security) resolve claims
by private citizens against public authorities. A further group (including
tax tribunals) decide disputed claims by public authorities against private
citizens, while others decide such issues as the right to enter or visit the
United Kingdom. Tribunal members are normally appointed by the minister
concerned with the subject, but other authorities have the power of
appointment in some cases. For example, the Lord Chancellor (and, in Scotland,
the Lord President of the Court of Session) makes most appointments where a
lawyer chairman or member is required.

     In the case of many tribunals, a two-tier system operates, with an
initial right of appeal to a lower tribunal, and final right of appeal,
usually on a point of law, to a higher one. Appeals from some of the higher
tribunals on a point of law only may be made to the High Court in England
and Wales, to the Court of Session in Scotland, and to the Court of Appeal
in Northern Ireland. There are a few exceptions including, for example,
immigration appeals, where there is no right of appeal directly from the
Immigration Appeals Tribunal to the courts.

     The independent Council on Tribunals exercises general supervision over
many tribunals, advising on draft legislation and rules of procedure,
monitoring their activities and reporting on particular matters. A Scottish
Committee of the Council exercises the same function in Scotland. The Council
has a similar responsibility with regard to public inquiries.

Administration of the Law

Government Responsibilities

     Responsibility for the administration of justice rests with the Lord
Chancellor, the Home Secretary and the Secretaries of State for Scotland and
Nothern Ireland. The Prime Minister recommends the highest judicial
appointments to the Crown.

     The judiciary is independent and its adjudications are not subject to
ministerial direction or control.

England and Wales

     The Lord Chancellor is the head of the judiciary. He is concerned with
court procedure and is responsible for the administration of all courts other
than magistrates' and coroners' courts, and for a number of administrative
tribunals. He recommends all other judicial appointments to the Crown and
appoints magistrates. He has general responsibility for the legal aid and
advice schemes and for the administration of civil law reform.

     The Home Secretary is concerned with the criminal law, the police
service, prisons, and the probation and after-care service. He has general
supervision over magistrates' courts, together with some specific
responsibilities (such as approving the appointment of justices' clerks). He
appoints a board of visitors to each prison establishment (see p 20). He is
advised by the Parole Board on the release of prisoners on licence. The Home
Secretary is also responsible for advising the Queen on the exercise of the
royal prerogative of mercy to pardon a person convicted of a crime or to
remit all or part of a penalty imposed by a court.

     The Attorney General and the Solicitor General are the Government's
principal advisers on English law, and they represent the Crown in appropriate
domestic and international cases. They are senior barristers, elected members
of the House of Commons and hold ministerial posts. The Attorney General is
also Attorney General for Northern Ireland. As well as exercising various
civil law functions, the Attorney General has final responsibility for
enforcing the criminal law. The Solicitor General is, in effect, the deputy
of the Attorney General. As head of the Crown Prosecution Service, the
Director of Public Prosecutions is subject to supervision by the Attorney
General, as is the Director of the Serious Fraud Office.

Scotland

     The Secretary of State for Scotland recommends the appointment of all
judges other than the most senior ones, appoints the staff of the High Court
of Justiciary and the Court of Session, and is responsible for the
composition, staffing and organisation of the sheriff courts. District courts
are staffed and administered by the district and islands local authorities.
The Secretary of State is also responsible for the criminal law of Scotland,
crime prevention the police, the penal system and legal aid; he is advised
on parole matters by the Parole Board for Scotland.

     The Lord Advocate and the Solicitor General for Scotland are the chief
legal advisers to the Government on Scottish questions and the principal
representatives of the Crown for the purposes of litigation in Scotland. Both
are government ministers. The Lord Advocate is closely concerned with
questions of legal policy and administration and is responsible for the
Scottish parliamentary draftsmen. He must exercise an independent discretion
in carrying out his overall responsibility for the prosecution of crime.

Northern Ireland

     The administration of all courts is the responsibility of the Lord
Chancellor, while the Northern Ireland Office, under the Secretary of State,
deals with the police and the penal system. The Lord Chancellor has general
responsibility for the legal aid and advice scheme in Northern Ireland.