CIVILCIVIL PROCEEDINGSPROCEEDINGS
XII SEMINARIO DE ESTUDIO COMPARADO DE SISTEMAS JUDICIALES Y DE COOPERACIÓN JUDICIAL JUDICIALES Y DE COOPERACIÓN JUDICIAL Águilas 2010 INTERNACIONAL A TRAVÉS DEL LENGUAJE JURÍDICO CIVIL PROCEEDINGS
Introduction Civil courts Civil Procedure Rules 1998 Alternative Dispute Resolution (ADR) The trial or public hearing The judgment Enforcement of the judgment Appeal routes
ÁguilasÁguilas 2010 2010 2 IntroductionIntroduction:: webweb pagespages
• Her Majesty’s Court Service: http://www.hmcourts- service.gov.uk/
• Ministry of Justice: http://www.justice.gov.uk/
• The Judiciary of England and Wales: http://www.judiciary.gov.uk/
• Judgments (for the most senior courts, typically Court of Appeal / High Court of Justice decisions): http://www.judiciary.gov.uk/judgment_guidance/judgments/i ndex.htm
ÁguilasÁguilas 2010 2010 3 IntroductionIntroduction:: webweb pagespages
• County Court Judgments: http://www.registry- trust.org.uk/ • The UK Statute Law Database: http://www.statutelaw.gov.uk/ • United Kingdom Legislation: http://www.opsi.gov.uk/legislation/uk.htm • Civil Bench Book http://www.jsboard.co.uk/civil_law/cbb/index1.htm
ÁguilasÁguilas 2010 2010 4 CASE NAMES
ÁguilasÁguilas 2010 2010 5 IntroductionIntroduction:: civilcivil casecase namesnames
• Brown v Smith (two neighbours): Literally: “Brown versus Smith” Orally: “Brown and Smith”
• Judicial review cases: Mr. Brown is unhappy with Hardfordshire City Council for failing to take action against his neighbour Mr. Smith. He brings an action against the Council: R v Hardfordshire City Council, ex parte Brown
• In certain family and property actions (e.g. a case concerning a child): Re Smith or Re S
ÁguilasÁguilas 2010 2010 6 IntroductionIntroduction:: civilcivil casecase namesnames • Examples:
ÁguilasÁguilas 2010 2010 7 LEGAL BASIS, PARTIES & VOCABULARY
ÁguilasÁguilas 2010 2010 8 LegalLegal basisbasis
• CAUSE OF ACTION
• RIGHT OF ACTION Both refer to the legal basis of the claim made Î injury to some legal right.
- “No cause of action”: on the law. If you haven’t got cause of action your claim will be struck out. - “No merit”: on the facts of the case
ÁguilasÁguilas 2010 2010 9 PartiesParties
• Parties to the suit:
¾Claimant (CPR 1998; formerly plaintiff): injured party. “Petitioner” in divorce proceedings. Appeal stage: apellant.
¾Defendant (adversary) // “Respondent” in divorce proceedings. Appeal stage: respondent.
ÁguilasÁguilas 2010 2010 10 VocabularyVocabulary
• “ACTION”: term used at the initial stage (e.g. ‘cause of action’, ‘right of action’, ‘no cause of action’). • “CASE”: term used beyond the initial stage (e.g. ‘the case at issue’, ‘the instant case’, ‘as in the present case’.
• “CASE” and “LAWSUIT”: both normally connote a civil case.
ÁguilasÁguilas 2010 2010 11 WRONGS, TORTS & REMEDIES
ÁguilasÁguilas 2010 2010 12 DisputesDisputes
• Most disputes concern:
• Breach of contract • Tort (wrongful act independent of a contract) • Property rights • Successions or contentious probates • Industrial or intellectual property
FRAUD and ASSAULT under English law: both a crime and a tort.
ÁguilasÁguilas 2010 2010 13 WrongsWrongs
• Civil courts hear cases brought by persons who claim to have suffered some wrong, harm or injury:
• Personal injury • Loss of or damage to property • Damage to reputation • Damage to rights (infringement of rights)
ÁguilasÁguilas 2010 2010 14 RulesRules
• Depending on nature of the claim and rights alleged to have been infringed, the proceedings may follow rules based on:
¾common law principles/equitable principles (contract, tort).
¾statutory principles (traffic accidents, accidents at work).
ÁguilasÁguilas 2010 2010 15 TortsTorts • There are several types of tort (civil wrongs) including: ¾ wrongs against the person only (e.g. defamation of character, libel); ¾ wrongs against property only (e.g. trespass); ¾ wrongs which may be against people or property (e.g. negligence or nuisance). • Some matters may involve both contract and tort, e.g. personal injury cases which show negligence and breach of a contractual duty of care. • Others may be crimes as well as torts (e.g. assault).
ÁguilasÁguilas 2010 2010 16 TortsTorts
• Four most frequent torts in common law:
– Negligence (duty of care)
– Defamation: slander (oral)+ libel (written)
– Nuisance (e.g. dangerous objects, harmful substances, noise in excess, etc.)
– Trespass (e.g. housebreaking, burglary – inhabited houses)
ÁguilasÁguilas 2010 2010 17 TortsTorts
• TORT: “non-contractual civil wrong”; “wrongful act, independent of a contract, for which a civil action will lie” (ilícito civil extracontractual; daño, agravio).
• The law of torts defines the obligations imposed on the members of society to their fellows and provides for compensation for harms produced by breach of such obligations.
ÁguilasÁguilas 2010 2010 18 RemediesRemedies
• Claimant seeks a remedy:
¾ Damages (common law remedy). Usual remedy Î sufficient to redress claimant, no other remedy allowed “so far as money can make it” ¾ Relief (equitable remedy; e.g., exemption from a charge, duty or liability).
¾ Account of profit (assessment of profit obtained Î commercial and industrial property cases).
ÁguilasÁguilas 2010 2010 19 RemediesRemedies
• EQUITABLE REMEDIES:
¾ Specific performance.
¾ Rescission (of a contract).
¾ Injunction (court order, usually issued to the defendant, to do or refrain from doing something until court reaches final judgment in the matter).
ÁguilasÁguilas 2010 2010 20 CIVIL COURTS
ÁguilasÁguilas 2010 2010 21 COURTS EXERCISING CIVIL COURTS EXERCISING JURISDICTION CRIMINAL JURISDICTION
THE SUPREME COURT OF THE UK
COURT OF APPEAL
Civil Division Criminal Division
HIGH COURT OF JUSTICE CROWN COURT Chancery Family Queen’s criminal Division Division Bench Division
Divisional Divisional Administrative Senior Court Court Court courts
COUNTY Inferior courts COURTS
MAGISTRATES’ COURTS
TRIBUNALS ÁguilasÁguilas 2010 2010 22 CountyCounty CourtsCourts
• Majority of civil litigation takes place here. Subject to nature of the claim: debt repayment, personal injury, breach of contract (concerning goods or property), family issues (divorce or adoption), housing disputes (mortgage, etc.).
• District judges.
ÁguilasÁguilas 2010 2010 23 HighHigh CourtCourt ofof JusticeJustice
• QUEEN’S (OR KING’S) BENCH DIVISION: Admiralty Court + Commercial Court + Technology and Construction Court, TCC. ¾ Contract and tort (civil wrongs), judicial reviews and libel. Also claims for judicial review of administrative decisions or decisions of inferior tribunals.
• CHANCERY DIVISION: Patents Court & Companies Court. ¾ Company law, partnership claims, conveyancing, land law, probate, patent and taxation cases.
• FAMILY DIVISION. ¾ Family law and probate cases.
DIVISIONAL COURTS: appeals.
ÁguilasÁguilas 2010 2010 24 CourtCourt ofof AppealAppeal ofof EnglandEngland andand WalesWales • Civil Division:
¾Appeals from:
• HCJ (three divisions);
• County Courts (sometimes);
• Certain Tribunals (Employment Appeal Tribunal, Land Tribunal, Asylum and Immigration Tribunal, Social Security Commissioners).
ÁguilasÁguilas 2010 2010 25 CIVIL PROCEDURE RULES
ÁguilasÁguilas 2010 2010 26 CivilCivil ProcedureProcedure RulesRules 19981998 “PROCEDURAL RULES” • Prior to April 1999: ¾ Rules of the Supreme Court (“White Book”) Î RSC (HCJ, Civil Division of Court of Appeal + House of Lords). ¾ County Court Rules (“Green Book”) Î CCR (civil courts of first instance). REENACTED AS SCHEDULES TO CPR 1998
• CPR, as of April 1999. “The Woolf Report”, Access to Justice, published by The Rules Committee, under chairmanship of Lord Woolf. ¾ Accompanied by Practice Directions (PD; they are guidelines) PD 29, para.6 J paragraph 6 of the Practice Direction to Rule 29.
¾ Older rules recodified as schedules to new rules. RSC J Schedule 1; CCR J Schedule 2
¾ Order (norma) Æ Part (título).
ÁguilasÁguilas 2010 2010 27 CivilCivil ProcedureProcedure RulesRules 19981998
http://www.justice.gov.uk/civil/procrules_ fin/index.htm
ÁguilasÁguilas 2010 2010 28 CivilCivil ProcedureProcedure RulesRules 1998:1998: PrinciplesPrinciples • All proceedings before courts must be dealt with:
¾ Efficiently.
¾ Fairly (=imparcialidad).
¾ Openly (transparencia; principio de publicidad. Reporting restrictions).
¾ Consistently (=coherencia).
¾ Without undue delays (=sin dilaciones indebidas).
… IN DUE PROCESS OF LAW
ÁguilasÁguilas 2010 2010 29 CivilCivil ProcedureProcedure RulesRules 19981998 • Overriding objective: “all cases should be dealt with justly”:
(1) to ensure that parties are on an equal footing;
(2) to save expense;
(3) to deal with cases in a way proportionate to: (1) amount involved, (2) importance of the case, (3) complexity of issues & (4) financial position of each party;
(4) to ensure that cases dealt with expeditiously (no undue delays) and fairly;
(5) to allot (assign) to cases an appropriate share of court’s resources.
ÁguilasÁguilas 2010 2010 30 CivilCivil ProcedureProcedure RulesRules 19981998 Measures: 1. Simplification of legal language (plain English). 2. Use of Information Technology (IT). 3. Case management. Procedural judges Î strict control of times (stages) and procedure. 4. Unification of procedure. 5. Tracking.
ÁguilasÁguilas 2010 2010 31 CivilCivil ProcedureProcedure RulesRules 19981998
(1) Simplification of legal language
• Reduction of technicalities J expression within the understanding of competent speakers not trained in law.
• Leaflets available to prospective litigant: outlining of essential procedures, likely stages, costs, tracking, statements, etc.
ÁguilasÁguilas 2010 2010 32 CivilCivil ProcedureProcedure RulesRules 19981998 (1) Simplification of legal language
- Plaintiff Î “Claimant”.
- Pleadings (alegaciones) Î “Statements of case/claim”. Careful
with “particulars of claim” (where claimant sets out details of the
case: escrito de pretensiones).
- Affidavit Î “Statement of truth” (declaración jurada).
- Writ of summons Î “claim form”.
- Leave Î “Permission” (“with the permission of the court”).
- Discovery Î “Disclosure”.
ÁguilasÁguilas 2010 2010 33 CivilCivil ProcedureProcedure RulesRules 19981998
(2) Use of Information Technology
Openness & efficiency J electronic means of communication.
- Some procedural hearings conducted by telephone. - Judges’ instructions to parties sent out by computer. - Electronic filing and/or exchange of documents. - Automation of bureaucratic process at trigger dates: chasing up (locating) the parties, sending out reminders, etc. ÁguilasÁguilas 2010 2010 34 CivilCivil ProcedureProcedure RulesRules 19981998 (3) Case management J Procedural judges (I) To speed up and streamline (rationalize) proceedings. Management of each stage. Proceedings must move along at a satisfactory rate.
- Proactive, not reactive (formerly: intervention of judges at the request of the parties). Now they act on their own initiative/motion and have wide powers: they adjourn (put off) or stay proceedings (hold them up); consolidate actions; strike out (reject) statements of case, hold interlocutory hearings by telephone, receive evidence by telephone, impose sanctions (failure to comply with time limits), etc.
ÁguilasÁguilas 2010 2010 35 CivilCivil ProcedureProcedure RulesRules 19981998 (3) Case management J Procedural judges (II)
- Case management conferences: to check that directions given to parties are being complied with + to encourage the parties to settle their dispute outside the court system
- Pre-trial review: to verify that all requirements are met for trial to start.
ÁguilasÁguilas 2010 2010 36 CivilCivil ProcedureProcedure RulesRules 19981998 (4) Unification of procedure (I) Common procedure for commencement of all civil law claims.
Single system based on SERVICE OF CLAIM FORM by claimant on defendant (4-month period after issue of claim form). Accompanied by:
(1) Form that contains PARTICULARS OF CLAIM (escrito de pretensiones) and sets out facts relied on, nature and object of claim, remedy sought, relevant legal grounds.
(2) RESPONSE PACK: acknowledgement of service (“serve proceedings”), admission of the claim (allanamiento), defence of the claim (contestación a la demanda).
ÁguilasÁguilas 2010 2010 37 CivilCivil ProcedureProcedure RulesRules 19981998
(4) Unification of procedure (II)
If defendant fails to acknowledge service within 21 days: claimant is entitled to (“has the legal right to”) seek default judgment (sentencia en rebeldía). 14 more days if service acknowledged.
Return of defence form: intention to contest the action.
ÁguilasÁguilas 2010 2010 38 CivilCivil ProcedureProcedure RulesRules 19981998
(4) Unification of procedure (III) Three main stages: (1) Issue of claim form. (2) Service of claim form on defendant. (3) Acknowledgement of service Î implies that the defendant places himself on the court record (se constituye como parte en el proceso).
ÁguilasÁguilas 2010 2010 39 CivilCivil ProcedureProcedure RulesRules 19981998 (4) Unification of procedure (IV)
TYPES OF DEFENCE THAT CAN BE SET UP: (1) Traverse (contradicción o impugnación simple): defendant denies facts alleged. Enough because burden of proof rests on claimant.
(2) Confession and avoidance (reconocimiento de hechos pero distinto valor jurídico): admission of literal truth of facts alleged but addition of others which would defeat (hacer ineficaz) the claim.
(3) Objection in point of law (excepción dilatoria): defendant may apply for point to be tried as a preliminary issue; may also apply for claim to be struck out for (1) disclosing no cause of action (falta de legitimación), (2) being frivolous (carecer de fundamento) or vexatious (motivada por animadversión personal) or (3) being an abuse of process of the court (abuso procesal).
(4) Counterclaim, countersuit, cross-claim, cross-action (reconvención, contrademanda, contrareclamación): defendant does not deny facts but sets off against it a prior claim of his own (not necessarily monetary or on same subject-matter). Defendant can ask for stay of execution of judgment favourable to claimant on original action until counterclaim is heard.
ÁguilasÁguilas 2010 2010 40 CivilCivil ProcedureProcedure RulesRules 19981998
(5) Tracking
Procedural judge provides parties with allocation questionnaires (*) to complete and return (within 14 days).
Allocation: depends on amount involved (amount in dispute), type of claim and the judge’s view of complexity of issues involved.
Tracks: - The small claims track. - The fast track. - The multitrack.
ÁguilasÁguilas 2010 2010 41 THE SMALL CLAIMS TRACK
ÁguilasÁguilas 2010 2010 42 SmallSmall claimsclaims tracktrack
- Ordinary claims not exceeding £5,000.
- Tried always by district judges. - Very simple procedural rules: possible for litigants to conduct the case themselves with no help from a solicitor (Access to Justice, “Woolf Report”). - European small claims procedure will come into forceon1st January2009.
ÁguilasÁguilas 2010 2010 43 THE FAST TRACK
ÁguilasÁguilas 2010 2010 44 TheThe fastfast tracktrack
- Cases valued at between £5,000 and £15,000. Also for non-monetary claims (claims seeking an injunction or specific performance of a contract). Limited disclosure (formerly discovery), written expert evidence only (expert witnesses = peritos).
- Simplifies and speeds up cases: formerly 83 weeks J 38 weeks. PREVENTION OF TIME-WASTING: Trials not to last longer than one day, refusal to grant extensions to time limits and refusal to allow more than one expert witness.
- Claims: - Professional negligence, fatal accidents, contentious probate, fraud, claims against police, malicious prosecution (temeridad o mala fe procesal).
ÁguilasÁguilas 2010 2010 45 THE MULTI-TRACK
ÁguilasÁguilas 2010 2010 46 TheThe multimulti--tracktrack Cases valued over £15,000 and/or unusually complex or that last more than one day.
Examples of cases: - Commercial and business law. - Company law. - Specialist proceedings (arbitration, Admiralty proceedings, intellectual and industrial property). - Title deeds (escrituras de dominio), leases (arrendamientos) and other documents by which land/property transferred.
ÁguilasÁguilas 2010 2010 47 ALTERNATIVE DISPUTE RESOLUTION (ADR)
ÁguilasÁguilas 2010 2010 48 AlternativeAlternative DisputeDispute ResolutionResolution (ADR)(ADR)
Parties can ask proceedings to be ‘stayed’ (halted) for settlement. Possibilities after stay: settlement, extension of stay, allocation. Common for:
- Commercial and industrial/labour disputes. - Divorce actions (over property & ancillary relief). - Motor vehicles tort claims - Medical malpractice tort claims
ÁguilasÁguilas 2010 2010 49 AlternativeAlternative DisputeDispute ResolutionResolution (ADR)(ADR)
Case Management Conference (CNC)
A judge makes parties meet with him/her as a chairman and encourages ADR.
ÁguilasÁguilas 2010 2010 50 AlternativeAlternative DisputeDispute ResolutionResolution (ADR)(ADR)
POSSIBILITIES:
(1) Mediation
(2) Arbitration
[US: Mini-trials]
ÁguilasÁguilas 2010 2010 51 AlternativeAlternative DisputeDispute ResolutionResolution (ADR)(ADR)
(1) Mediation
A form of facilitated negotiation where a neutral third party guides the parties to their own solution.
ÁguilasÁguilas 2010 2010 52 AlternativeAlternative DisputeDispute ResolutionResolution (ADR)(ADR)
(2) Arbitration
• Dispute resolution in which a neutral third party (arbitrator, often a retired judge) renders a decision after a hearing. • Arbitration awards (not ‘judgments’) ARE binding decisions. • In commercial disputes and consumer claims. • Governed by case law/common law + Arbitration Act 1996. ÁguilasÁguilas 2010 2010 53 AlternativeAlternative DisputeDispute ResolutionResolution (ADR)(ADR)
(3) Mini-trials
• Developed in North America. • Presided over by judicial figure or neutral adviser. • They involve abbreviated presentation of evidence by representatives of parties who have authority to settle the dispute.
ÁguilasÁguilas 2010 2010 54 THE TRIAL
ÁguilasÁguilas 2010 2010 55 TheThe trialtrial oror hearinghearing
ÁguilasÁguilas 2010 2010 56 TheThe trialtrial oror hearinghearing
• “Trial proper”. “Trial” = from service to final judgment. • Standard of proof required (on balance): “proof on the balance of probabilities” (“it is more likely than not that what they say is true”).
• Giving of evidence: evidence-in-chief. • Witness evidence Î defendant usually first witness to be called. • [Civil trials video-recorded in Spain].
ÁguilasÁguilas 2010 2010 57 TheThe trialtrial oror hearinghearing
• Expert evidence: Single joint expert. • The parties agree between themselves who they want to instruct as an expert. If they do not agree, 3 names are submitted to the court. Courts don’t provide independent experts, only if parties don’t agree (no experts appointed by courts, except if legal aid funds).
• Disclosure (formerly ‘discovery’): mutual exchange of documents and relevant information and inspection of evidentiary documents.
ÁguilasÁguilas 2010 2010 58 TheThe trialtrial oror hearinghearing
(1) Counsel for the claimant first to intervene, opening speech: s/he goes through the statements of case (or pleadings) and states the claimant’s case.
(2) Counsel for the claimant calls witnesses to give evidence on oath or affirmation.
ÁguilasÁguilas 2010 2010 59 TheThe trialtrial oror hearinghearing • Examination of witnesses:
ÁguilasÁguilas 2010 2010 60 TheThe trialtrial oror hearinghearing
• Examination of witnesses:
¾ Direct examination or examination-in- chief. (No leading questions J questions that “lead” the witness into an answer or that take information for granted). ¾ Cross examination. ¾ Re-examination.
ÁguilasÁguilas 2010 2010 61 TheThe trialtrial oror hearinghearing
• One exceptional case of judge sitting with a jury: actions for defamation.
• In this case the jury finds on facts; if they find for the claimant, they also fix the amount of the damages.
ÁguilasÁguilas 2010 2010 62 THE JUDGMENT
ÁguilasÁguilas 2010 2010 63 TheThe judgmentjudgment
(1) Judgment for the claimant (plaintiff). (2) Judgment for the defendant.
English law does not ‘condemn’ or ‘absolve’ defendant J there is no question in civil matters of guilt or innocence.
Damages or any other remedy NOT SEEN as a punishment on the defendant but rather as his/her duty to compensate, relieve or redress claimant for wrong suffered. ÁguilasÁguilas 2010 2010 64 TheThe judgmentjudgment Parts of a judgment:
[“Encabezamiento” - heading] ¾ Whereas clauses (antecedentes de hecho = facts in issue). ¾ Facts as found (hechos probados). LEC 2000. ¾ Points of law (fundamentos de derecho = legal reasons for decision/legal grounds). ¾ Ruling (fallo). Ratio decidendi (+ obiter dicta when appropriate). ÁguilasÁguilas 2010 2010 65 TheThe judgmentjudgment • Remedies:
¾ Damages: “No other remedy will be allowed if damages is an adequate remedy” (sufficient to redress –compensate- claimant for injury caused “so far as money can make it”).
¾ Relief: e.g. exemption from a charge, duty or liability + injunction (court order issued to one party to do sth –mandatory- or to refrain from doing sth –prohibitory-).
¾ Accountofprofit(industrial & intellectual property cases): restoration to rightful owners of profits made from unlawful trade in goods or marks (alternative to damages).
¾ Other: specific performance, etc. ÁguilasÁguilas 2010 2010 66 EnforcementEnforcement ofof thethe judgmentjudgment
Enforcement of a judgment:
[Stay of execution: judgment cannot be enforced without permission of court]
¾ Warrant of execution. Tipstaff (High Court); Bailiff (County Court) ¾ Attachment of earnings order (deduction of amount from employee’s earnings to pay a debt). ¾ Third party debt order. ¾ Charging order. If amount owed is more than £750: possibility to apply to make defendant bankrupt.
ÁguilasÁguilas 2010 2010 67 EnforcementEnforcement ofof thethe judgmentjudgment Judicial and court statistics. Most frequently used enforcements: • (a) writ of fieri facias (fi-fa) directing the sheriff (the equivalent of the bailiff in the county courts) by his officers to seize and if necessary sell the debtor’s goods to raise money to pay off the debt. • (b) writ of possession of land (eviction takes place if necessary to ensure that possession of property or land is recovered). • (c) writ of delivery of goods which is an order to hand over specific goods. • (d) charging order on land, securities or funds in court (usually on land –this has the same effect as a mortgage, so that if the property is sold the amount of the charge (debt) must be paid out of the proceeds of the sale). • (e) third party debt order (formerly garnishee), which orders that a third party (normally a bank) holding money for the judgment debtor pay it to the judgment creditor direct. • (f) appointment of a receiver who will manage the judgment debtor’s property or part of it in such a way as to protect the judgment creditor’s interest in it. ÁguilasÁguilas 2010 2010 68 APPEAL ROUTES
ÁguilasÁguilas 2010 2010 69 AppealAppeal routesroutes
ÁguilasÁguilas 2010 2010 70