The main aim of the civil justice process is to provide the means by which civil disputes can be resolved in accordance with the principles of justice and fairness which the process promotes. This includes ensuring that the parties are on equal footing and that the case is handled in a manner proportionate to the money involved (Wilson, Mitchell, Storey and Wortley 2011). It considers the complexity of issues to be solved and the financial position of each of the parties in the case.
In a bid to promote fairness and justice by the legal system, “there have been a variety of ways through which disputes are resolved” (Zander 2007, p. 366). These include alternative dispute resolution options which are less costly than the formal litigation process and the consumers can use to seek redress.
Parties involved: The major parties (the first parties) are the defendant and the plaintiff. “A defendant is the party sued in a civil law suit whereas the plaintiff is the one that lodges a complaint about the other” (Lavarch and Stacy 1999, p. 36).
Burden of proof: The burden of proof lies with the plaintiff and also with the defendant to refute evidence that is provided by the plaintiffs. Wilson, Mitchell, Storey and Wortley argue that where the judge believes there is more than 50% evidence favoring the plaintiff, and then the plaintiff wins the case (2011).
Remedies/ sanction: Sanctions may be imposed on parties that fail to comply with the pre- action requirements. “The requirements demand that the parties each exchange information and documents in an attempt to settle disputes without undergoing a litigation process” (Lavarch and Stacy 1999, p. 37). Additionally, there are categories of disputes with protocols which if not followed warrants sanctions on the party that does not comply for example in the case of professional and construction negligence cases.
The most common remedies are those in which a Plaintiff wants a decision taken by the Defendant quashed. In Zander, although more than one remedy may be applied for by the parties, the granting of those remedies lies entirely with the court (2007). The remedies include mandatory order, quashing order, prohibiting order, injunction, damages and declaration. Equitable remedies are developed and granted by courts of equity. Most courts today in the UK have merged the legal and equitable remedies and either or both remedies can be issued by a single court.
Procedure /enforcement: The defendant is expected to voluntarily make payment once judgment is obtained. “If the defendant fails to make payments, the plaintiff has available procedures; arranging for the seizing of the defendants assets and obtaining a charging order over the property owned by the defendant” (Wilson, Mitchell, Storey and Wortley 2011). There are also options of forcing of forcing insolvency on the defendant where the judgment sum is not met.
Lord Woolf’s Access to Justice Report
Main Problems with the Civil Justice System
According to Woolf, “the problems were expensive processes, slowness in bringing cases to conclusion, inequality, uncertainty of litigation costs, incomprehensibility to most litigants, the overly fragmented nature of the civil justice administration and adversarial nature of cases that were mostly run by the parties” (Lavarch and Stacy 1999, p.38). Lord Woolf was of the argument that there was need to improve access to justice for the resource poor individuals and small businesses in a less confrontational way than the traditional and formal litigation system that was in use. He argued there were more co-operative ways that individuals and businesses would pursue to resolve disputes. He insisted on justice for all in the court systems.
He recommended that a system where the courts will be responsible for the management of cases be formed. “The courts are to decide on what procedures suit each case, set realistic timetables for the cases and comply with the set timetables and procedures” (Zander 2007, p. 367). He suggested that defended cases are to be allocated to tracks; a small claims jurisdiction with a financial limit of £3,000, a fast track with limited procedures and fixed timetables and costs for straight forward cases of up to £10,000 and a multi track that provide hands on management of heaviest cases above £10,000.
Critical Analysis of the Statement that the Civil Justice System is Still Characterized by Delay, Exorbitant Cost and Complexity and the Woolf Reforms Have not achieved Anything
The statement is true although some of the Woolf’s interim proposals were implemented even before the final report was released. The Civil Procedure Rule Committee that was mandated with making court rules for all civil and non family litigation published the official Civil Procedure Rules in 1999. In addition, the Fast Track and the Multi Track were introduced to support judicial case management with the Fast Track being supported by fixed costs. The civil court fee was also revised in a bid to improve fairness. The revision of litigation fee was however not fair to the common man, it favored the more economically predisposed. Despite Woolf’s recommendations that the claims jurisdiction set a limit of £3,000, “the revision allowed for a minimum limit of £5,000 except for minor injury cases that would be charged £1,000” (Wilson, Mitchell, Storey and Wortley 2011). This made the litigation process expensive and consequently inaccessible in the long run.
Owing to the “expensive and time wasting litigation processes, most people have opted for alternative dispute resolution measures like mediation which are far much cheaper and consumes less time to conclude than the formal litigation process” (Zander 2007, p. 367). In addition, court fees have been increasing substantially over the last few years thereby increasing the efficiency of the court system by providing disincentives for needless litigations. The disadvantaged people are subsidized and individuals are compensated by the court if the court fails to abide by the date of trial set by the judges. Also, the penalties placed on courts when they do not meet deadlines make them accountable in service delivery. This however runs into years of seeking redress and compensation, making it expensive in terms of time and emotional involvements.
Advantages and Disadvantages of the Civil Court System
The case is decided by a legally qualified judge who applies judicial precedent doctrine for reasoned decision. In addition, there is “an appeal system for parties who do not agree with the court decision by the trial judge. Legal aid is also availed for the financially incapacitated individuals” (Lavarch and Stacy 1999, p. 37). The disadvantages on the hand are that the civil courts are exorbitant, mostly costing more than is claimed. There are also delays in trials and appeals and incorporates complex procedures. In addition, the judge may not posses the technical expertise required for a case in whose trial date the parties do not have control.
Civil Justice System Reforms
Reforms are needed for effectiveness of service delivery through adequate funding of the litigation process and deal with cases at considerable speeds. The current litigation process costs are way higher than the affordability of most citizens making fairness a question. Also, formal litigation processes take up to three years thereby increasing party anxiety and unresponsive to the needs of the parties
When to Pursue a Civil Case Instead of a Criminal Prosecution
Where costs are involved and the plaintiff wants remedy, it is advisable to pursue a law suit instead of a criminal prosecution. For example, a sexual assault victim is better placed pursuing a civil law suit against a defendant and/or a third party because he/she will be able to recover the costs of medical care, counseling and time lost form work. From the insight of Wilson, Mitchell, Storey and Wortley, the lawsuit may also be used to compensate the victim for damages such as family relationships, psychological afflictions, physical pain and emotional suffering. In addition, a civil lawsuit provides a ground for a victim(s) to make public statement of a crime that occurred where the criminal justice system claimed insufficient evidence to warrant criminal prosecution (2011).