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- CIVIL PROCEEDINGS IN ENGLAND AND WALES
- FRENCH CIVIL LAW SYSTEM
I. CIVIL PROCEEDINGS IN ENGLAND AND WALES
1. THE COURT SYSTEM
In England and Wales, the two main courts dealing with civil claims are :
- The High Court (major disputes) ;
- The County Court (minor disputes).
2. THE TRIBUNAL SYSTEM
In the UK, there is a two-tier Tribunal System :
- A first-tier Tribunal : is divided into 6 Chambers ;
- An Upper Tribunal : is divided into 4 Chambers. The Upper Tribunal reviews and decides appeals coming from the First-tier Tribunal. It is a superior court like the High Court.
Tribunals often sit as a panel, incorporating a legally qualified tribunal judge.
Tribunal panels may include non-legally qualified members who have expertise in different areas.
Tribunals have limited powers : they can impose fines and penalties or award compensation and costs.
Some Tribunals are not part of the two-tier structure : they are administered through local authorities such as the Employment Tribunal.
3. THE OVERRIDING OBJECTIVE (= l’objectif prioritaire)
The overriding objective of the CPR (Civil Procedure Rules) is to deal with cases justly and at proportionate cost.
The CPR encourage ADR (= alternative dispute resolution).
4. ALLOCATION TO TRACK (= la répartition des affaires)
There are 3 tracks to which cases are allocated once proceedings have been issued :
- The small claims track : where no more than £5,000 is in dispute ;
- The fast track claims : where no more than £25,000 is in dispute ;
- The multi track claims : it is for cases valued over £25,000.
5. COURT PROCEDURE UNDER THE RULES
Commencing a claim – Proceedings are started when the court issues a claim form at the request of the claimant.
Security of Costs (= la caution des frais) – It is a protection for defendants from insolvent claimants.
If the defendant successfully defends the claim, the defendant can expect to recover a percentage of its costs from the claimant.
When a defendant believes that its costs will not be paid, he can apply to the court for an order that the plaintiff provide security for costs.
This order will usually require the claimant to pay money to the court or provide a form of guarantee before it is allowed to proceed with the claim.
Statements of Case (= exposé des faits) – The documents in which parties set out the case they expect to prove at the trial.
Statement of Truth – A number of court documents must include a statement of truth (for exemple : the statement of case). A statement of truth states that a party believes the facts stated in a document to be true and accurate.
Discontinuance (= désistement) – A claimant may decide to discontinue his claim after he has issued proceedings. However, he will be liable for the cost incurred by the defendant.
Summary Judgement (= jugement sommaire) – It is a procedure by which any of the parties or the court can dispose of all or part of a case without a trial where the claimant or the defendant has no real prospect of success.
Disclosure (= la divulgation) – Disclosure is the process whereby parties will enable each other to inspect or will give each other copies of the documents which are relevant to the issues in the claim.
Certain documents are privileged, such as letters between solicitors and clients.
Evidence (= preuves) – The parties’ solicitors will make statements setting out the evidence of the witnesses to be called to give evidence at trial.
There is a statement of truth at the end of a witness statement, which states that the witness believes the facts in the witness statement are true and accurate.
The Trial – At the opening of the trial, the claimant’s counsel will describe to the Judge the nature of the dispute and its arguments.
The claimant’s counsel will then call the claimant’s first witness and examine him.
The witness will be cross-examinated by the defendant’s counsel et re-examined on the behalf of the claimant.
Then, the parties’ solicitors will sum up the evidence and make submissions to the Judge on the relevant law.
The Judge may give his judgment immediately or, in a more complicated case he may reserve judgment until a later date.
Injunctions – An injunction is a Court order prohibiting a person from doing or continuing to do a particular act.
The Court can grant an injunction early in the action to preserve the claimant’s position.
Costs – The normal rule in UK proceedings is that the loser pays the winner’s costs.
6. ENFORCEMENT (= exécution des jugements)
If the loser does not make payment voluntarily, there are various enforcement procedures such as :
- A charging order : it prevents the defendant from selling his or her assets without paying what is owed to the judgment creditor. The judgment creditor may be paid from the proceeds of the sale when the judgment creditor sells the property of the defendant ;
- Warrant of execution : a Bailiff attends at the defendant’s home or premises and seizes his goods. The judgment creditor may be paid from the proceeds of the sale.
A Writ of Fieri Facias is the equivalent of a Warrant of Execution but is used to enforce a judgment in the High Court
II. FRENCH CIVIL LAW SYSTEM
France has a system of Civil Law.
Court of Cassation – The last degree of jurisdiction is the Court of Cassation : it is the Highest Court in the French civil law system. This Court does not judge on the facts but checks whether the laws have been properly applied by the inferior courts in civil and criminal matters.
First degree of jurisdiction – There are civil and criminal courts and several specialiazed courts such as the commercial court and the labor court.
In the labor court, judges are not professionals; they are elected by their peers. Half the members represent employers, and half represent employees.
In the commercial court, judges are non-professional judges who are also elected by their peers.
Administrative courts – These courts settle disputes between public authorities and citizens.
The Council of State (Conseil d’Etat) is the highest jurisdiction of the administrative branch.
The Tribunal of Conflicts (Tribunal des Conflits) – This tribunal decides which is the propert court for a disputed case.
The dual system of courts (civil and administrative courts) leads to conflicts of jurisdiction. The final arbiter of these conflicts is the Tribunal of Conflicts.
2. CIVIL PROCEDURE
In civil procedure, only the written briefs bind the Court.
The judges of the british system are more passive. The judge just listens and acts as an arbitary. Whereas in France the judge has to inquire, conduct the case, by questioning directly the witnesses.
In France there is no obligation on any party to disclose particular documents or categories of documents : the disclosure of evidence is entirely voluntary.
The French courts rarely require or allow witnesses to provide evidence or make admissions in pleadings, particularly in civil proceedings.
The solicitor who whishes to question a witness must first submit to the judge and opposing counsel « articles of proof » describing the scope of the potential questions.
Witnesses will be questioned at a later hearing.
Witnesses are not cross-examined by opposing counsel; only the judge can ask the witness questions.
There is no civil jury and no pretrial phase.
Lay judges are not professional judges. They are appointed for 7 years, not renewable, on the basis of experience (ex : in the labor court).
The public prosecutor may have a role in a civil case.
3. APPELLATE PROCEDURE
There are :
- Intermediate appellate courts which hear cases on appeal from lower courts and
- Courts of last resort which hear appeals from lower appellate courts on the interpretation of law.
– dealing with civil claims = qui traitent les poursuites civiles-