THE CIVIL COURTS 4
The first part of this chapter looks at the civil court structure and at which type of cases are heard in which trial courts, the rules relating to transfer of cases from one level of court to another, the system of appeals and the criticisms that have been made of the various aspects of these systems.
What is the difference between a criminal and civil case? There are several key distinctions.
Criminal cases are brought by the State against individual or corporate defendants, whereas civil cases are brought by one citizen or body against another such party. The State here involves the police (or possibly Customs and Excise officers or tax inspectors), who investigate the crime and collect the evidence, and the Crown Prosecution Service, which prepares the Crown’s case. In civil cases, the State is not involved, except insofar as it provides the courts and personnel so that the litigation can be judged. If a party refuses, for example, to be bound by the order a court makes in a civil case, then that party may be found in contempt of court and punished, that is, imprisoned or fined.
The outcomes of civil and criminal cases are different. If a criminal case is successful from the point of view of the person bringing it (the prosecutor) because the magistrate or jury finds the defendant (sometimes called the accused) guilty as charged, then the result will be a sentence. There is a wide range of sentences available, from absolute or conditional discharges (where the convicted defendant is free to go without any conditions or with some requirement, for example, that the defendant undertakes never to visit a particular place) to life imprisonment. Criminal sentences, or ‘sanctions’, are imposed to mark the State’s disapproval of the defendant’s crime. There is often a considerable cost in imposing a punishment. The prison population was 85,400 in March 2011. The male prison population increased by 0.3 per cent to 81,148 and the female prison population fell by 1 per cent to 4,252 in the period 31 March 2010 to 31 March 2011 (Offender Management Statistics Quarterly Bulletin, Ministry of Justice, 28 April 2011). At an average cost of £697 per prisoner per week (Hansard, 11 March 2004, col WA190), the average cost to the state is £36,244 per prisoner per year. By contrast, fines (the most common sentence or ‘disposal’) can often bring revenue to the State. In any event, the victim of a crime never gains from the sanction imposed on the criminal. A criminal court can order a convicted person to pay the victim compensation, but this will be in addition to and separate from the sentence for the crime.
If a civil case is successful from the point of view of the person bringing the claim (the claimant), the outcome will be one of a number of civil remedies which are designed to benefit the claimant and in which the State, or wider community, has no direct interest. Civil remedies include damages, court orders like injunctions, orders of prohibition and specific performance. So, in civil proceedings, the claimant will sue the defendant and a successful claim will result in judgment for the claimant. In matrimonial cases, the party who brings an action is called the petitioner and the other party is known as the respondent.
Civil and criminal cases are processed differently by the English legal system. They use different procedures and vocabulary, and they are dealt with, on the whole, by different courts. It is very important not to confuse the vocabularies of the different systems and speak, for example, about a claimant ‘prosecuting’ a company for breach of contract. The law of contract is civil law, so the defendant would be ‘sued’ or ‘litigated against’ or have ‘a claim taken against’ him, her or it.
The following question then arises: ‘What is the difference between a crime and a civil wrong; how am I to tell into which category a particular wrong falls?’ The answer will be found simply by building up a general legal knowledge. There is nothing inherent in any particular conduct that makes it criminal. One cannot say, for example, that serious wrongs are crimes and that lesser transgressions will be civil wrongs: some crimes are comparatively trivial, like some parking offences, while some civil wrongs can have enormously harmful consequences, as where a company in breach of a contract causes financial harm to hundreds or thousands of people.
Sometimes a single event can be both a crime and a civil wrong. If you drive at 50 mph in a 30 mph zone and crash into another vehicle, killing a passenger, you may be prosecuted by the State for causing death by dangerous driving and, if convicted, imprisoned or fined. Additionally, you may be sued for negligence (a tortious civil wrong) by a dependant of the killed passenger and the driver.
The Courts Act 2003 provided for a new unified courts administration to be created, by combining the functions of the court service and the magistrates’ courts committees. The new organisation, Her Majesty’s Courts Service (HMCS), was established in April 2005. The aim of the agency was to deliver improved services to the community, taxpayer, victims, witnesses and all other users of the courts and to develop best practice with the most effective use of resources.
The proposal to set up a new system of courts administration in England and Wales derived from Sir Robin Auld’s Review of the criminal courts published in October 2001 (A Review of the Criminal Courts of England and Wales, The Right Honourable Lord Justice Auld, 2001). He recommended that a ‘single centrally funded executive agency, as part of the former Lord Chancellor’s Department (now the Ministry of Justice) should be responsible for the administration of all courts, civil, criminal and family (save for what was then the House of Lords), replacing the court service and magistrates’ courts committees’.
The government accepted Sir Robin’s proposals for a unified system of courts administration in the White Paper ‘Justice for All’, published in July 2002. The Courts Act 2003 was passed to implement the changes and Her Majesty’s Courts Service was later launched in 2005.
On 1 April 2011 Her Majesty’s Courts Service and the Tribunals Service were amalgamated into one integrated agency, Her Majesty’s Courts and Tribunals Service (HMCTS), providing support for the administration of justice in courts (up to and including the Court of Appeal) and most tribunals. HMCTS remains a separate agency of the Justice Ministry.
The courts are not in a good economic state. The Lord Chief Justice has announced that the maintenance backlog in the courts had risen from £38m in 2000 to £200m in 2008 and it would remain at this level for three years. The current economic situation poses significant challenges to the justice system; the Justice Secretary Kenneth Clarke has proposed to cut £350 million from the legal aid budget alone.
Grave concerns about the civil court system have been raised by District Judge David Oldham, president of the Association of Her Majesty’s District Judges (Woolf reforms and cost-cutting have led to acute shortages and a ‘deficient’ system, F Gibb, The Times, 16 April 2009). He argues that the civil courts are woefully under-resourced – a problem ever more acute in times of hardship. He has stated:
My mission is to persuade the Government to return to funding our civil courts to a realistic level and as the recession brings more and more individuals to the county courts, to ensure that all who need it have access to free and efficient expert advice and assistance from a duty solicitor or advice agency independent of the Courts Service.
Judge Oldham notes that the civil court system receives a smaller slice of public funds than criminal or family courts, and fees charged to court users have risen to ‘draconian levels’ under the policy of making civil courts pay for themselves.
One result, according to the judge, has been a fall in care applications (for vulnerable children) by local authorities. They were given extra funds for such cases but it was not ring-fenced. The range of the increase, he argues, from £150 to £4,000, was something the local authorities just could not cope with. Concerns remain that local authorities may not bring care proceedings and because cost is a factor, Judge Oldham argues, the authorities ‘will look at alternative ways of dealing with a child. That is potentially putting that child at risk’. On top of this, civil legal aid has, he says, ‘virtually disappeared’, and the number of people acting for themselves has soared – such as in family disputes over the residence of a child or contact. ‘Where emotions run high, it is very difficult for people to deal with these cases themselves’ (The Times, 16 April 2009). The Commission of Inquiry into Legal Aid has estimated that the legal aid cuts to the civil system are a false economy; according to figures supplied to the Inquiry by Citizens Advice, for every £1.00 of legal aid spent on benefits advice, the State saves up to £8.80, and for every £1.00 of legal aid spent on employment advice, the State saves up to £7.13 (see www.guardian.co.uk/law/2011/jun/14/legal-aid-cuts-false-economy).
Judge Oldham also observed that the recession has resulted in a steep rise in bankruptcy proceedings by local authorities over council tax arrears: ‘there’s not much we can do by the time it gets to us after several opportunities to pay and the councils have an obligation to their ratepayers’; plus a rise in housing possession claims. The electronic system for such claims by mortgage companies allows only a five-minute hearing, which, Oldham says, is often inadequate. About half those in arrears are unrepresented: legal aid is limited and few solicitors have a franchise to do the work.
Professor Dame Hazel Genn argued in her 2009 Hamlyn Lectures that the main thrust of civil justice reform in the last decade was not primarily about greater access, nor about greater justice, ‘It is simply about diversion of disputants away from the courts’ (F Gibb, The Times, 23 June 2009). She argued that:
In England, we are witnessing the decline of civil justice, the degradation of court facilities and the diversion of civil cases to private dispute resolution – accompanied by an anti-court, anti-adjudication rhetoric that interprets these developments as socially positive.
She argued that a principal threat to civil justice was the ‘unstoppable burgeoning of criminal justice’ including the demands of human rights laws and costs of a growing prison population. The battle for resources was heightened at a time of economically imposed financial restraint. With a unified budget for all parts of the justice system now established under the Ministry of Justice the importance of civil justice is, Genn has argued, obscured and under-rated. Unlike any other common law system the civil courts in England are self-financing, paid for by litigants. However, Genn noted, any surplus generated from litigants’ fees is not invested in the civil courts: instead it is ‘redirected into the gaping maw of criminal justice’.
Magistrates’ courts have a significant civil jurisdiction. They hear family proceedings under the Domestic Proceedings and Magistrates’ Courts Act (DPMCA) 1978 and the Children Act (CA) 1989. Here, the court is termed a ‘family proceedings court’ or ‘FPC’. A family proceedings court must normally be composed of not more than three justices, including, as far as is practicable, both a man and a woman. Justices who sit on such benches must be members of the ‘family panel’, which comprises people specially appointed to deal with family matters. The magistrates’ court deals with adoption proceedings, applications for residence and contact orders (the CA 1989), and maintenance relating to spouses and children. Under the DPMCA 1978, these courts also have the power to make personal protection orders and exclusion orders in cases of domestic violence. They have powers of recovery in relation to council tax and charges for water, gas and electricity.
The county courts were introduced in 1846 to provide local, accessible fora for the adjudication of relatively small-scale litigation. There are 218 county courts. These courts are served by circuit judges and district judges, the latter appointed by the Lord Chancellor from persons who have a seven-year qualification (s 71 of the CLSA 1990).
The Civil Procedure Rules (CPR), which we examine in Chapter 5, operate the same process irrespective of whether the case forum is the High Court or the county court. Broadly speaking, county courts will hear small claims and fast-track cases, while the more challenging multi-track cases will be heard in the High Court.
Over the past 10 years, the numbers of cases being resolved by the county court has increased as the financial limit of cases within its jurisdiction has increased. Also during this period, the profile of county court work has changed. The numbers both of full trials and of small claims arbitrations have fallen sharply during the last 10 years. In 1994, there were 24,219 trials and 87,885 small claims arbitrations. In 2004, there were 14,680 trials and 46,100 small claims arbitrations. The small claims limit is £5,000, except for personal injury claims, which carry a £1,000 limit.
A Practice Direction ( 3 All ER 722) states that certain types of actions set down for trial in the High Court are considered too important for transfer to a county court. These are cases involving:
• professional negligence;
• fatal accidents;
• allegations of fraud or undue influence;
• malicious prosecution or false imprisonment;
• claims against the police.
The civil courts are under a great pressure from the cutbacks being made as part of governmental budget strategy. Governmental plans announced in 2010 will see the Ministry of Justice’s budget cut from £9 billion to £7 billion, with £450 million coming out of administrative areas alone. The staffing of the law courts is already, by common judicial consent, quite inadequate but 14,250 of these frantically demanding jobs will be cut, along with a possible 15,000 at the Ministry of Justice itself, leaving the residual workforce to toil in a hopeless Sisyphean challenge.
In 2007, Judge Paul Collins, London’s most senior county court judge, said that low pay and high turnover among staff meant that serious errors were commonplace and routinely led to incorrect judgments in court. He said that with further cuts looming ‘we run the risk of bringing about a real collapse in the service we’re able to give to the people using the courts’.
The 2011 Judicial and Court Statistics give the following profile of court activity for 2010 (Judicial and Court Statistics, Ministry of Justice, June 2011):
• There were 68 appeals presented to the UK Supreme Court during 2010, while 57 appeals were determined.
• During 2010 a total of 7,300 applications for leave to appeal were received, of which 1,500 were against conviction in the Crown Court and 5,500 against the sentence imposed.
• A total of 2,600 appeals were heard by the Court of Appeal Criminal Division during 2010, of which 500 appeals against conviction and 2,100 appeals against sentence were heard.
• A further 1,200 appeals were filed in the Court of Appeal Civil Division.
• There were 10,600 applications for permission to apply for judicial review received in the Administrative Court of the High Court in 2010, the majority of which, as in previous years, concerned asylum and immigration matters.
• Of the 460 substantive applications for judicial review which were dealt with at the Administrative Court during 2010, 190 (42 per cent) were allowed, 260 (55 per cent) were dismissed and the remaining 3 per cent were withdrawn.
• Some 1,617,000 civil (non-family) cases started in 2010, a fall of 14 per cent compared to 2009, continuing the general downward trend seen since 2006.
• The fall in 2010, compared to 2009, was mainly due to decreases in specified money claims (typically related to debt issues) of 19 per cent, insolvency petitions of 14 per cent, and repossession claims of 9 per cent, and was despite a 6 per cent increase in the number of unspecified money claims (typically related to personal injury).
• There were 291,000 defences made in 2010, an 8 per cent decrease on the previous year and the lowest since 2006.
• Defended cases which are not settled or withdrawn generally result in a hearing or trial. In total there were 63,000 trials and small claims hearings in 2010, a fall of 7 per cent from 2009 and lower than in each of the three previous years (from 2006 to 2008). On average, small claims hearings occurred 31 weeks after the claim was originally made, the same as in 2009.
• There were 447,000 applications for enforcement in 2010 (of which 279,000 were for warrants, and the remainder for orders such as for attachment of earnings, which oblige the debtor’s employer to deduct a set sum from the debtor’s pay and forward it to the court). This was a decrease of 24 per cent compared with 2009 and of 37 per cent compared with 2008. These falls reflect the large falls in claims issued for a specified amount of money and repossession of property and also the large increases in court fees for enforcement applications since 13 July 2009.
• A total of 54,000 repossessions of property were made by county court bailiffs, a fall of 14 per cent on the previous year and reflecting the decrease in repossession claims; 24,000 of the properties were on behalf of mortgage lenders, 27 per cent fewer than in 2009 and 34 per cent lower than the 2008 peak.
Trials took place an average 50 weeks after the claim was originally made, up from 48 weeks in 2008 and 2009.
Regarding remedies, the county court cannot grant the prerogative remedies; that is, they cannot grant search orders (an interim mandatory injunction obtained without notice to prevent the defendant from removing, concealing or destroying evidence in the form of documents or moveable property, formerly known as the Anton Piller order) and neither, generally, can they grant freezing orders (formerly Mareva injunctions) to prevent the defendant from removing his assets out of the jurisdiction of the English courts or dissipating them. For recent authoritative guidance of both of these orders, see Practice Direction ex p Mareva Injunctions and Anton Piller Orders (1994).
The main advantage to litigants using the small claims process is the fact that, if sued, they can defend themselves without the fear of incurring huge legal costs, since the costs that the winning party can claim are strictly limited. The average waiting period for trial was 31 weeks (as opposed to 50 weeks for fast and multi-track cases). Although successful claimants are unable to recover costs of legal representation, the small claims procedure does not exclude litigants from seeking legal advice or engaging such legal representation. If a litigant is unrepresented, the district judge may assist him or her by putting questions to witnesses or to the other party, and by explaining any legal terms or expressions.
A litigant simply needs to complete a claim form, available from any county court, and send it to the court with the issue fee appropriate to the amount claimed (ranging from £80 to £230, depending on the value of the claim). If the case is defended, it will be dealt with at an informal hearing, sitting around a table in the district judge’s office. This avoids the need for a trial in open court, which many litigants find daunting.
The working of the small claims system is looked at in greater detail in Chapter 5.