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2018 | Book

Introduction Read chapter Read first chapter

The Three Paths of Justice

Court Proceedings, Arbitration, and Mediation in England

Author: Dr. Neil Andrews

Publisher: Springer International Publishing

Book Series : Ius Gentium: Comparative Perspectives on Law and Justice

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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About this book

This revised second edition takes account of developments in the field of dispute resolution, including mediation and arbitration. The book presents a concise account of the English system of civil litigation, covering court proceedings in England and Wales. It is an original and important study of a system which is the historical root of the US litigation system. The volume offers a comprehensive and properly balanced account of the entire range of dispute resolution techniques.
As the first (revised) book on this subject to be published in the USA, it enables American lawyers to gain an overview of the main institutions of English Civil Procedure, including mediation and arbitration. It will render the English system of civil justice accessible to law students in the US, practitioners of law, professors, judges, and policy-makers.

Table of Contents

Frontmatter
Chapter 1. Introduction
Abstract
This opening introduces the Woolf Reports (1995, 1996) that produced the new Civil Procedure Rules (CPR 1998). It reports the aims of the Woolf Reforms (1995–8) and the Jackson changes (2009–2013). It also identifies four enduring features that continue after the reforms. There are three main paths of justice: Court proceedings; Arbitration; Mediation. The path to court judgment is not the only route to justice. There are two otter routes: mediation and arbitration. They too complement each other. The overall picture is complex and interconnecting. The four enduring features of English civil proceedings are: (1) England and Wales retain a divided legal profession, lawyers being solicitors or barristers, unless they have become solicitor-advocates, a rare category; (2) the general rule is that the winner is entitled to recover his costs from the defeated party; (3) parties determine the scope of the litigation and select their witnesses; (4) trial is a rare event, and nowadays nearly always heard by a judge without a jury. As for court proceedings, there are six phases: (1) the pre-action phase; (2) commencement and pleadings; (3) case management and preparation for trial (factual evidence, expert evidence, and disclosure); (4) trial and judgment; (5) appeal; (6) enforcement. Practical access to justice is achieved for small claims and access is enjoyed by oligarchs and large companies litigating matters worth several million pounds. Otherwise there is a crisis of non-access to justice. One significant improvement for claimants (part of the Jackson package of changes) is that claimants suing for personal injury are not at a costs risk if they lose (QOCS in personal injury cases. Another problem has been delay. Matters improved in the last fifteen years. But in the Court of Appeal there are either major inefficiencies or there are not enough judges who are expected to perform too many tasks. The logjam in the Court of Appeal is going to take years to clear. A further problem is that even if a claimant obtains a money judgment, there can be real problems in getting that judgment enforced against defendant’s assets.
Neil Andrews
Chapter 2. Principles and Transnational Dimensions
Abstract
This chapter places the fundamental principles of civil justice under four headings: (1) regulating access to court and to justice; (2) ensuring the fairness of process as a shared responsibility of the court and the parties; (3) maintaining a speedy and efficient process; and (4) achieving just outcomes. It shows how Article 6(1) of the European Convention on Human Rights, now directly applicable in English courts through the Human Rights Act 1998, has contributed to the development of these principles. Among topics covered are: the duty to give a reasoned judgment; abolition of the House of Lords (Judicial) and the creation of the Supreme Court of the United Kingdom. There is also consideration of the ALI/UNIDROIT Principles of Transnational Civil Procedure (2006).
Neil Andrews
Chapter 3. First Instance Proceedings
Abstract
This chapter contains a survey of the full range of proceedings in the first instance of litigation. It addresses these main topics. (1) The first encompasses initial measures that already produce tangible results and that sometimes result in early termination of lawsuits, i.e. interim payments, interim injunctions, default judgments, summary judgments and striking out of claims and defences. (2) The second group governs disclosure of all sorts ranging from pre-action disclosure to disclosure against third parties. (3) The third group concerns privileges and immunities against disclosure, i.e., legal advice privilege, litigation privilege and factual witness immunity. (4) The fourth group addresses different systems of expert testimony. (5) Finally, the chapter examines trial and evidence at trial.
Neil Andrews
Chapter 4. Appeals and Finality
Abstract
This chapter examines two crucial points: (1) appeals and (2) the ‘res judicata’ effect of final judgments. There are many restrictions on appeals, notably the requirement that appeal requires the permission of the lower court or of the proposed appeal court. The main doctrines of finality are cause of action and issue estoppels, which preclude re-litigation between the same parties of the same claim or the same issue. A further restriction is the so-called Henderson v Henderson principle. This requires a party in earlier proceedings to raise all conveniently arguable points of claim or defence, otherwise this principle dictates that there should be no second opportunity to do so in later proceedings between the same parties.
Neil Andrews
Chapter 5. Costs and Funding
Abstract
This chapter explains the “English Rule” on attorney fee and other cost shifting and how it is changing. This topic is a dynamic feature of English practice, innovations including costs budgets and greater concentration on proportionality, as well as fixed (recoverable) costs. There is also discussion of the conditional fee system and damages-based agreements and compares it to the American contingent fee system.
Neil Andrews
Chapter 6. Enforcement of Court Judgments and Orders
Abstract
This chapter examines the various ways in which civil judgments can be enforced. Money judgments can be enforced by: (i) taking control of goods; or (ii) a third party debt order (that is, a ‘garnishee order’); or (iii) a charging order (against land), stop order (against securities or funds in court), or a stop notice (against securities); or (iv) by appointment of a receiver. Breach of injunctions will render the party in default a ‘contemnor’ and the contempt of court procedure (known as ‘committal proceedings’) can then be applied. In appropriate circumstances, a contemnor might be condemned by a civil court to pay a fine or be imprisoned or to have assets seized by the court’s enforcement officers (‘sequestration’ of assets). There is also a mechanism allowing judgment creditors to gain access to information concerning the judgment debtor’s assets.
Neil Andrews
Chapter 7. Protective Relief
Abstract
Freezing injunctions and civil search orders prevent the defendant from thwarting the claimant’s efforts at achieving justice by dealing with assets or evidence in a cynical way, or by absconding from the jurisdiction.
Neil Andrews
Chapter 8. Multi-party Litigation
Abstract
English ‘multi-party’ litigation can take various forms: test cases, consolidated litigation or multiple joinder of parties’, ‘Group Litigation Orders’ (such litigation involves ‘opting-in’ by each individual), representative proceedings (an opt-out procedure which has not taken off as far as money claims are concerned) The Consumer Rights Act 2015 has introduced a class action mechanism for injunctions or money claims in respect of competition law infringements. Commencement of this last form of proceeding requires permission from the Competition Appeal Tribunal.
Neil Andrews
Chapter 9. International Commercial Arbitration
Abstract
This chapter contains a succinct overview of English arbitration within the perspective of international commercial arbitration. A controversial feature of the English arrangements is that section 69 of the Arbitration Act 1996 offers a (carefully controlled) appeal to the English High Court on the basis that the award contains an error of English law (but not errors of fact, nor errors of foreign law).
Neil Andrews
Chapter 10. Mediation in England
Abstract
Six fundamental principles of mediation are identified. This chapter also surveys the main features of mediation in England. The mediator’s role is to act as an independent and disinterested third party and encourage the parties to talk and to move towards a possible agreed settlement. In England resort to mediation has increased, notably in the field of commercial disputes. Litigation remains an expensive and problematic means of resolving many types of civil dispute. Government recognises that ADR permits disputes to be resolved less expensively than civil litigation. Many corporations now prefer to use arbitration in combination with other ADR mechanisms (a ‘multi-tiered’ dispute-resolution clause). An English court will enforce mediation agreements by ordering a stay of litigation brought in violation of that agreement. English judges do not act as mediators. Instead the court system encourages litigants to pursue mediation in appropriate cases. Judicial leverage to consider and to pursue mediation takes the form of a ‘stay’ upon current proceedings or the threat of an adverse costs order. Confidential communications during mediation are privileged against compulsory production in legal proceedings.
Neil Andrews
Chapter 11. Mediation: A Global Survey
Abstract
This chapter contains analysis of substantial global investigation of the practice of mediation. The main finding is that there is general support for the ‘voluntary principle’, namely; (i) parties should not be compelled to mediate; (ii) at all times the process should be under their joint consensual control; and (iii) the parties must be completely free to agree whether to settle and on what terms.
Neil Andrews
Backmatter
Metadata
Title
The Three Paths of Justice
Author
Dr. Neil Andrews
Copyright Year
2018
Electronic ISBN
978-3-319-74832-0
Print ISBN
978-3-319-74831-3
DOI
https://doi.org/10.1007/978-3-319-74832-0