Civil justice in England and Wales
Civil justice in England and Wales is mainly dealt with in the county courts and, in the case of more substantial or complex cases, the High Court. The jurisdiction covers a very wide range – from quite small or simple claims, for example damaged goods or recovery of debt, to large claims between multi-national companies.
Civil cases involve hearings in open court which the public may attend, hearings in the judge’s private room from which the public are excluded, and matters decided by the judge in private but on the basis of the papers alone.
Most civil disputes do not end up in court, and those that do often don’t go to a full trial. Many are dealt with through mediation (a process taking place outside a court to resolve a dispute) or by using established complaints procedures. But where a case does go through the courts, the aim is to make it as simple as possible. For smaller claims there is a speedy and cheap way of resolving disputes – through the small claims court.
Judges in the civil jurisdiction do not have the power to imprison a losing party. Ordinarily, but not always, they award financial ‘damages’ to the successful party, the size of which depends on the circumstances of the claim.
A judge hearing a civil case
Before trying a civil case the judge reads the relevant case papers and becomes familiar with their details.
The vast majority of civil cases tried in court do not have a jury (libel and slander trials are the main exceptions) and the judge hears them on his or her own, deciding them by finding facts, applying the relevant law to them – and there may be considerable argument about what that law actually is – and then giving a reasoned judgment.
Judges also play an active role in managing civil cases once they have started, helping to ensure they proceed as quickly and efficiently as possible.
- encouraging the parties to co-operate with each other in the conduct of the case;
- helping the parties to settle the case;
- encouraging the parties to use an alternative dispute resolution procedure if appropriate; and
- controlling the progress of the case.
Occasionally, the parties will have agreed the relevant facts and it will not be necessary for the judge to hear any live evidence. The issues may concern the law to be applied or the terms of the judgment to be given. But more often than not, written and live evidence will be given by the parties and their witnesses and the live witnesses may be cross-examined. The judge ensures that all parties involved are given the opportunity to have their case presented and considered as fully and fairly as possible. During the case the judge will ask questions on any point he or she feels needs clarification. The judge also decides on all matters of procedure which may arise during a hearing.
Once the judge has heard the evidence from all parties involved and any submissions (representations) they wish to put forward, he or she delivers judgment. This may be immediately, or if the case is complicated, at a later date.
Civil judges do have the power to punish parties if, for example, they are in contempt of court but, generally, civil cases do not involve the imposition of any punishment.
If the judge decides that the claimant is entitled to damages, he or she will have to go on to decide the amount. Or the claimant may have asked for an injunction – for example, to forbid the defendant from making excessive noise by playing the drums in the flat upstairs in the early hours of the morning, or a declaration – an order specifying the precise boundary between two properties about which the parties had never been able to agree. The task of the judge to is to decide on what is the appropriate remedy, if any, and on the precise terms of it.
When the judgment in the case has been delivered, the judge must deal with the cost of the case. This may include the fees of any lawyers, court fees paid out by the parties, fees of expert witnesses, allowances that may be allowed to litigants who have acted in person (without lawyers), earnings lost and travelling and other expenses incurred by the parties and their witnesses. The general rule is that the unsuccessful party will have to pay the successful party’s costs but the judge has a wide discretion to depart from this rule. The judge’s decision on this part of the case will be very important to the parties. He or she may decide, for example, that the unsuccessful party should pay only a proportion of the successful party’s costs or that each party should bear their own costs. The judge may hear representations about this at the end of the case.
Court of Appeal – Civil Division
The Civil Division of the Court of Appeal hears appeals from all Divisions of the High Court and, in some instances from the County Courts and certain tribunals. The Civil Division is presided over by the Master of the Rolls. Bringing an appeal is subject to obtaining ‘permission’, which may be granted by the court below or, more usually, by the Court of Appeal itself. Applications for permission to appeal are commonly determined by a single Lord Justice, full appeals by two or three judges. The Civil Division of the Court Appeal also deals with family cases.
High Court – Queen’s Bench Division – Civil
The President of the Queen’s Bench Division presides over that Division, which includes both its criminal and civil jurisdiction. Judges who sit in the Queen’s Bench Division of the High Court deal with ‘common law’ business i.e. actions relating to contract except those specifically allocated to the Chancery Division, and civil wrongs (known as tort). They also hear more specialist matters, such as applications for judicial review.
Examples of contract cases dealt with by Queen’s Bench Division judges are failure to pay for goods and service and breach of contract.
Judges who sit in the Queen’s Bench Division of the High Court deal with actions relating to various different types of tort. These include:
- Wrongs against the person e.g. defamation of character and libel
- Wrongs against property e.g. trespass
- Wrongs which may be against people or property – e.g. negligence or nuisance.
They also deal with matters that involve both contract and tort, such as personal injury cases which show negligence and breach of a contractual duty of care. Other cases dealt with may be crimes as well as torts, such as assault.
The Queen’s Bench Division also contains:
- The Commercial Court
- The Admiralty Courts; and administers
- The Technology and Construction Court
High Court judges who sit in these courts hear cases involving prolonged examination of technical issues, for example, construction disputes.
Judges of The Queen’s Bench Division also sit in the Employment Appeals Tribunal.
High Court – Chancery Division
The Chancery Division of the High Court is presided over by The Chancellor and around 20 High Court judges. There is some overlap with the Queen’s Bench Division, however certain matters are specifically assigned to the Chancery Division.
The principal business of judges who sit in the Chancery Division is corporate and personal insolvency disputes, business, trade and industry disputes, the enforcement of mortgages, intellectual property matters, copyright and patents, disputes relating to trust property and contentious probate actions.
Most Chancery business is dealt with in the Royal Courts of Justice in London and in eight provincial High Court centres which have a Chancery jurisdiction.
Circuit Judges – Civil
Circuit judges may deal solely with civil, family, criminal work, or divide their time between the three. Circuit judges deal with a variety of civil and family cases and may specialise in particular areas of law, for example, commercial. Circuit judges generally hear claims worth over £15,000 or those involving greater complexity or importance.
Recorders – Civil
Recorders Civil sit as fee-paid judges in county courts. Some Recorders Civil may also be authorised to deputise for specialist civil circuit judges – for example in the Chancery Division, the Mercantile Court and the Technology and Construction Court.
The statutory jurisdiction of a Recorder is in general identical to that of a circuit judge, although the usual practice is that Recorders do not hear appeals from district judges. The jurisdiction covers almost the whole field of civil law and is mostly concurrent with that of the High Court. In addition, a number of statutes confer exclusive jurisdiction on the county courts.
Cases listed before a Recorder Civil may include disputes in the fields of housing, commercial landlord and tenant, contract, tort, personal injury or appeals from decisions of local authorities in respect of their exercise of their function regarding homelessness, (Part VII of the Housing Act 1996).
District judges are full-time judges who deal with the majority of cases in the county courts of England and Wales.
Their work involves: dealing with civil disputes such as personal injury cases, claims for damages and injunctions; possession proceedings against mortgage borrowers and property tenants, and claims for reasonable provision out of the estates of deceased persons. Many district judges will also deal with bankruptcy petitions, as well as the winding up of insolvent companies.
Deputy District Judges
A deputy district judge is appointed to sit in the county court or in a High Court District Registry to case manage and try civil, family, costs, enforcement and insolvency cases. They try small claims and fast track cases, family ancillary relief hearings, hear interim applications and make procedural directions preparing cases for trial. Their jurisdiction is broadly similar to that of a full time district judge although they have limited authority to deal with family cases involving children.
It is a fee-paid post open to any fully qualified and currently practising solicitor or barrister with at least seven years’ experience. There is no minimum age limit for applying although a deputy must retire at 65.