Civil Justice System assignment essay PDF

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CIVIL JUSTICE SYSTEMCJS is a systematic procedure devised for resolution of legal disputes between private parties. The aim of CJS is to make sure the legal rights of an individual are upheld including individual plus public at large. The CJS should be accessible and affordable for the people so tha...

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CIVIL JUSTICE SYSTEM CJS is a systematic procedure devised for resolution of legal disputes between private parties. The aim of CJS is to make sure the legal rights of an individual are upheld including individual plus public at large. The CJS should be accessible and affordable for the people so that people can their legal rights which would inevitably uphold rule of law. World Justice Project states that a well functioning CJS is one which is affordable, accessible, effective and impartial. In UK courts charged exorbitant amount of fees which limited access to justice. It was also famously quoted’ “the doors of the court are open like the doors of Hotel Ritz.” Through Legal Aid the govt is responsible to ensure access to justice in the following ways. Firstly, the citizens are aware of their legal rights and responsibilities. Citizens are aware of procedures and how their rights may he redressed and citizens can be provided with an equal level playing field while participating in the legal court system. Legal aid is the provision of monetary aid in various ways. In UK (England & Wales) the legal aid system was established through Legal Aid and Advise Act 1949 which went on to become a comprehensive and celebrated scheme in the world covering advice and representation. In 1980’s most population was benefiting from it and the 1990’s, the scheme included Non-For-Profit Advice Agencies. In 1990’s the budget touched approximately £ 2 Billions which pushed the govt to review its policy where they started to cut down on funding. The most significant blow to the Legal Aid System came in 2012 with the passing of LEGAL AID SENTENCING and PUNISHMENT of OFFENDER ACT (LASPO) 2012. This act cut funding in major areas specially targeting civil and family cases involving the most vulnerable groups. Services were cut down and many advise centres closed down closed down due to lack of funding.

EFFECTS OF LASPO: Due LASPO being a recent act, it’s entire effects are not visible but most important issue may be people suffering at large in terms of health related problems such as depression and anxiety. They might try to live in the terrible circumstances where they do not have any access to justice, which would mean so many rights are being violated against which nothing can be done. Citizens may take law in their own hands which will increase the crime rate negativity effecting the society at large. Citizens who may have some means may become litigants in persons (LIP’s) that will be placing them at a disadvantage against a party who was legal representation. A justice committee formed by House of Commons set up an inquiry about the effects of LASPO. The inquiry went on to show that the cost cutting objective/aim was achieved but the negative effects on access to justice were tenfold. The overall effects were harming access to justice entirely and increasing costs in some areas.l with LIP’s. There was no increase in the usage of ADR as a result of LASPO.

The Justice Committee’s findings were as follows:

⁃ There was an underspending in civil litigation and legal aid as govt had not ensured eligibility. LASPO resulted in many legal service providers closing down. (Public) ⁃

An increase in LIP’s and reduction of mediation as an avenue.

Access to justice is considered as a fundamental right in common law. Firstly in the case of Witham (1998) deals with it, where Sir John Laws stated that the common law has given, “special weight to citizens right of access to the courts.” and has described it as a fundamental right. R (Unison) v Lord Chancellor (2017) in which it was reaffirmed that there is a constitutional right of access to justice that is inherent in the rule of law. Daly (2001), where Lord Bingham stated that access to justice means access to courts, access to legal advice and right to confidentiality communicate with your lawyer.

Article 6 of ECHR requires that legal aid should be provided in a criminal matter. There is no specific provision for legal aid in civil matters. In the case of Airey v Ireland (1979), the claimant claimed that non provision of legal aid led to unfairness. The ECtHR rejected the claim and stated that Legal Aid is not a prerequisite for access to justice. Access to justice can also be provided by other means such as simplification of court procedure.

In English law it is the right of an individual to appear in court without representation. In 2013 Lord CJ Lord Thomas stated that growing number of LIP’s was one of most significant justice system issue. LIP’s in court proceedings have difficulty in understanding the law collection relevant evidence, complying with procedural rules and expressing their case in court while keeping their emotions in check. The English system is adversarial which only acts to their problem. Accordingly, many senior judges have adopted a rather inquisitorial approach while dealing with LIP’s. It was seen in the case of Mole v Hunter that courts have shown sufficient flexibility to adapt to proceedings to ensure justice is done. In the cases of Re R (A child) (2014) justices explained that when dealing with LIP’s. It is the responsibility of the judge to adopt an inquisitorial approach. A number of official reports have made recommendations for how to provide assistance to the increasing number of LIP’s. The Civil Justice Council report in 2011 recommended a holistic approach focusing on early information and advice, demystification of the law, simplification of court process, case management by judges and a more legal education/awareness for citizens. A judicial working group on LIP’s reported in 2013 and concluded that it was necessary for courts to modify adversarial procedures and adopt a more inquisitorial approach dealing with LIP’s.

They also recommended allowing lay advocates to address the court while making greater use of Mckenzie Friends (someone who accompanies an LIP, helps them in taking notes, organising documents and making small suggestions. The National Audit Office implementing to civil legal aid. In Nov 2014 on LIP’s sets out challenges they are facing.

The CJC held its third forum on LIP’s on Dec 2014. The recommendations of this forum included a call for coordinated action among voluntary groups to provide early advice and assistance. The govt is allocating additional research to PSU to provide a higher level of support by volunteers in court around the country. The CJC held its forth forum on LIP’s in Dec 2015. It commented on a wider number of issues including the expansion of Personal Support Network, the role of digitalisation and online access to justice, the issue of unbundling whereby solicitors only have a narrow duty of care to advice on limiting aspects of a given case.

Alternative Dispute Resolution.

ADR includes methods for resolving disputes other than court proceedings such as negotiations, mediations, reconciliation and arbitration etc.

Development of ADR:

Lord Woolf advocated for strengthening ADR specially mediation. He even suggested that courts should penalise the claimant if he has not explored the option of mediation. This was because he believed that increasing the ADR will decrease the burden of CJS. In late 1990’s the courts started a drive of court attached mediation service to provide mediation in a cost effective manner to litigants who have started a case in court. It was observed that only a minute fraction of litigants opted for this service, but this who availed it were quite satisfied with it and that even their disputes were resolved reducing litigation cost. However, a matter which became a point of struggle proved to be costly in the long run (Litigation wise).

History of Mediation at page # 215 of guide.

JUDICIARY’S VIEW ON MEDIATION:

Courts have actively advocated for use of mediation as an avenue. This can be seen in the following cases:

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Cowl v Plymouth City Council (2001)

Lord Woolf held that parties are required to go for ADR before filing a case where public money is involved.

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Dunnett v Railtrack

The court held that claimant will not be avoided legal costs if he does not pursue mediation before a trial.

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Hurst v Leeming

It reaffirmed the Dunnet’s case.

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Halsey v Milton Keyn

The Court of Appeal held that the claimant should not be penalised if he doesn’t pursue mediation where there are no prospects of successful mediation.

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Burchell v Boullard

It reaffirmed the Halsey’s Case

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PGF II SA v OFMS Company (2013)

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Gore v Naheed (2017)

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Thakkar v Patel (2017)

Debate on Page # 217 of guide.

GOVERNMENT’S VIEW ON MEDIATION.

Government has been in favour of promoting mediation as this will reduce burden on CJS and Legal Aid. Govt has also advocated for mandatory mediation which is present in Australia and Canada. However, there are certain lawyers and judges who are opposed to the idea of mediation.

Although mediation is cost effective, it magnifies power imbalances putting the weaker at a disadvantage. Genn and Menker Menno. (Jurists) (Page 218)

PRIVATISATION OF JUSTICE:

An increasing phenomenon has been observed that parties file a case in courts but are eventually either forced to drop the case or themselves pull out of trial. ADR resolves disputes outside courts (out of court settlement) and hence, puts private individuals in an unregulated situation (privatisation). Genn opines that privatisation of justice may threaten the rule of law. There is a loss of precedence which means the law would not develop. An hence, the consequences or the result achieved would be unknown and unregulated. However, Menkor and Menno suggests that one who goes against privatisation of justice is probably a romanticiser of litigation. ADR is an evolutionary process developing an Anglo-American Legal System meaning the result of a trial is not achieved by a judge rather it is achieved by ordeal.

Privatisation of justice will reduce the development of law and limit guidance available for dispute resolution. This is evident in areas of commercial law where ADR is prevalent.

CJS

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vulnerable group of society (deprived of legal aid)

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CJS (Introduction)

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Concept of Legal Aid

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WJP

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Affordability and accessibility

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Linkage (Govt’s responsibility to ensure)

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UK courts introducing Legal Aid to less fortunate

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1980’s UK best legal system

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Problems of LASPO (giving rise to LASPO)

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Need for LASPO (Govt to invest in other sectors)

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LASPO controversy/aid cutting

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Problems of LASPO

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Discuss reports - aim achieved?

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Laws (precedent)

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ECHR

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Civil courts of UK (Complex, expensive, time consuming)

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CPR + Woolf Reforms

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Legal Aid + Court system unrefined

Mediation

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vanishing trials

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Preferable

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Less burden

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Quotations

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Promotions

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Pros and Cons

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Genn, Menkor and Meddo

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Privatisation

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System evolution

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Balance...