Návrat na detail prednášky / Stiahnuť prednášku / Univerzita Pavla Jozefa Šafárika / Právnická Fakulta / Legal English

vypracovaná otázka (19kový) č. 15 (q_15.doc)

15)

1. Civil procedure

Court procedure in the English-speaking countries is accusatorial. This means that judges do not investigate the cases before them but reach a decision based only on the evidence presented to them by the parties to the dispute. It can be compared to the inquisitorial procedure of some other European systems where it is the function of the judges to investigate the case and to collect evidence.

Procedure, as the word itself suggests (a series of actions to be completed in order to achieve some goal), comprises several steps leading to the conclusion of a case. The action is begun by issuing and serving the writ of summons. The writ is a document addressed to the defendant giving him notice that an action has been commenced against him and requiring him to place himself on the court record by delivering an acknowledgement of service to the court office. The writ is prepared by the plaintiff’s solicitor. However, some actions are commenced by a petition rather than a writ, for example a divorce or company liquidation. Then the defendant acknowledges services. He is obliged to return the completed forms of acknowledgement of service to the court office form which the writ has been issued within the limited time (normally 14 days). Consequently, an exchange of pleadings takes place. Each court to a greater or lesser extent relies on standard documentation, which sets out the facts, demands and allegations including the defendant’s filing a defence. All these are known as pleadings. Afterwards, if no pre-trial settlement is reached, the trial is held. Eventually, if there is no appeal the matter is concluded by enforcement of the judgement.

A writ is a written command, precept, or formal order issued by a court in the name of sovereign, state, or other competent legal authority, directing or enjoining the persons to whom it is addressed to do or refrain from doing some act specified therein. There are many writs of the specific designation, such as a writ of certiorari, entry, error, execution, habeas corpus, injunction, inquiry, privilege, prohibition, summons, venire facias, waste, etc.

Pleadings: The object of pleadings is to define the area of contention between the parties. A pleading must contain a brief statement of the facts relied on, but not the evidence by which they will be proved. If a matter is not included in the pleadings it cannot usually be raised at the trial.

The pleadings are:

1. The statement of claim. This is the first pleading and it is made by the plaintiff.
2. The defence, i.e. the defendant’s answer. If the defendant has a complaint against the plaintiff he may include a counterclaim with his defence.
3. The reply. This is the plaintiff’s answer to the defence.

The statement (or particulars) of claim should set out every fact which must be proved by the evidence at the trial if the plaintiff is to succeed in his claim. The important and overriding stylistic principle is, of course, that the pleading should be simple.

The defence should clearly set out the answers made by the defendant to every material allegation in the statement of claim. The defendant may take one of three possible steps in respect to each allegation:

4. He may admit the allegation; i.e. he may concede that the particular point is not in dispute. This relieves the plaintiff from the necessity of producing any evidence to prove the particular point at the trial.
5. He may deny the allegation. This not only means the plaintiff will be required to prove the allegation at the hearing but puts him on notice that the defendant intends to put forward a contrary case. The defendant must go on to set out the nature of that case, it is not sufficient for him merely to deny the allegation without stating what he says the true position is.
6. He may require the other side to prove the allegation without specifically denying it, this is effected by employing the phrase ’the Defendant does not admit…’ This formula is used to dial with matters which are essential elements in the plaintiff’s case but upon which the defendant has insufficient information to make any affirmative response.

It very often happens that the defendant not only wishes to defend the claim made by the plaintiff but also desires to bring a cross-action against him. It would in theory be possible for them to bring a completely separate action and apply for the cases to be heard together but in practice, in order to save expense and time, the defendant raises his cross-action by adding a counterclaim to his defence.

Trial

The trial is the stage of procedure where the judicial examination and determination of issues between parties to an action is carried out before the court which has jurisdiction. In Britain civil cases are usually heard by a judge or judges, jury trials being subject to specific exceptions as have already been mentioned. In the High Court the parties are usually represented by barristers although they may appear in person. Solicitors have a right of audience in the County Court and in Magistrates’ Courts but not in the High Court. The trial starts with the plaintiff’s barrister outlining the issues involved and calling witnesses. The defendant’s barrister then outlines his cases and call the evidence for the defence. Next the defendant’s barrister and then the plaintiff’s barrister will make a closing speech. Finally, the judge gives the decision in the form of a reasoned judgement which may be delivered as soon as the case is concluded, or reserved to a later date if the judge wishes to consider the case further.

Judgement can be defined as the legal reasoning and official decision of a court of justice upon the respective rights and claims of the parties to a case brought before it. Sometimes the word decision is employed in its stead; the two terms are commonly used interchangeably. In every civil case the judge is bound to deliver a reasoned judgement setting out his findings of fact on the evidence and his conclusion thereon. Where he is uncertain as to where the truth lies on any issue he must find against the party bearing the onus of proof since the party will have failed to establish the matter on the balance of probabilities. It should be remembered that the standard of proof in civil litigation is quite different from the standard in criminal cases.

2. Magistrates’ Judges

Stipendiary magistrates

These are full-time, paid, appointments made by the Queen on recommendation of the Lord Chancellor. Barristers or solicitors of seven years’ standing qualify for appointment. There are about 100 stipendiary magistrates. They sit in the magistrates’ courts in the larger cities particularly London. A case will be heard by a single stipendiary magistrate.

Lay magistrates

These are part-time, unpaid magistrates often known as justices of the peace (JPs). They are appointed from ordinary members of society by the Lord Chancellor on the recommendation of local advisory committees. They are not legally qualified although they do receive some basic training. A case will be heard by a bench of three lay magistrates who are advised on matters of law, admissibility of evidence and procedure by the clerk of the court. The justices’ clerk is a barrister or solicitor of at least five years’ standing. In addition to their duties in advising magistrates, they play an important role in the smooth functioning of the court (e.g. working on the issue of summonses). There are approximately 25.000 lay magistrates and they hear over 90 % of criminal cases.