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Question 1. Briefly describe the civil justice system and discuss the reasons for the increased use of alternative dispute resolution in civil cases in England and Wales. Civil and Criminal Justice System Distinction Civil Criminal Objective The main purpose is redress. The main purpose is punishmen...

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Question 1. Briefly describe the civil justice system and discuss the reasons for the increased use of alternative dispute resolution in civil cases in England and Wales. Civil and Criminal Justice System Distinction

Civil

Criminal

Objective

The main purpose is redress.

The main purpose is punishment.

Who initiates court proceedings?

Proceedings will be started by the person who has suffered the wrong- ‘the claimant’- who brings the case against the defendant. Claimants can be citizens, businesses or public bodies.

These are generally started by ‘the prosecutor’ (mostly the state) who brings the case against the defendant or accused.

Burden

Claimant must prove the case.

Prosecution must prove the case.

Standard of Proof (i.e. how sure the decision maker has to be about the responsibility of the defendant)

Claimant must prove the case on ‘a balance of probabilities’ which means that the evidence proves it is more likely than not that the defendant is liable.

Prosecution must prove the case against the defendant ‘beyond the reasonable doubt’. The standard of proof is more demanding.

Decision Maker

Mostly by judges or Mostly by magistrates magistrates and only rarely (summary offenses) or by by jury juries (indictable offenses)

Type of Penalty

In case the defendant is found liable, the remedy awarded by the court to a successful claimant may be a financial compensation, an injunction, or declaration.

Civil Justice System:

Court gives a verdict, by which the the defendant will be found guilty or not. If guilty, judge will decide the appropriate penalty, which could be a custodial sentence, a community sentence, a fine, or a discharge.

Scope: 1. The scope of civil justice system is broad and complex compared to the criminal justice system. The range of claimants is enormously diverse and the range of potential defendants equally varied- including the save itself. Citizens and businesses make use of the civil justice system when they are in dispute over legal rights which they cannot solve by direct discussions or negotiations with that party with which they are in dispute. Areas of law that come within the broad category of ‘civil’ are contract law, the law of tort, landlord and tenant, family law, administrative law, company law and employment law. 2. Genn, 1997- The parts of the legal system that are not concerned with criminal law comprise a rag-bag of matters and participants. There are disputes relating to the performance or non-performance of contracts involving businessmen suing each other, individuals suing businesses, and businesses suing individuals. There are claims of compensation resulting from accidental injury in which individuals sue institutions. Civil justice also involves attempts by citizens to challenge decisions of central and local government bureaucrats, a rapidly growing field that includes immigration, housing, mental health, child welfare, and the like. Finally, there are often heartbreaking struggles between men and women following the breakdown of family relationships as property and children become the subject of legal dispute. All of these marres come within the ambit of civil justice system. 3. The public courts are the backbone of the civil justice/ The courts are provided by the state to determine civil disputes by applying the common law or statue and developing legal principles. There is also a range of private dispute resolution processes which are available to citizens and business to use as a supplement or as an alternative to formal court proceedings. These are confidential and the decisions are not made public. Access to Civil justice and Legal Aid Substantive legal rights are of little value to citizens if they do not know their rights and feel unable to use the legal justice system. Governments committed to the rule of law accept that it is necessary to provide help for people who need access to the courts to enforce or defend their rights, but who can not afford to pay for legal advice and representation. The provision of legal services at public expense, generally referred to as legal aid is an acknowledgement of the difficulties that the public often face in using the legal system without advice and advocacy. The provision of legal aid is an expression of government committee to the rule of law, which promises equality before the law and equal access to justice. Legal Aid System in England and Wales: England and Wales has had a Legal AId system since the end of the second World War. It was established by the Legal Aid

and Advice Act 1949 and was designed to provide ‘legal advice for those of slender means and resources, so that no one will be financially unable to prosecute a just and reasonable claim or defend a legal right.’ Before its establishment in 1949 and the beginning of its decline in mid-1980s, the legal aid system in England and Wales developed into one of the most comprehensive schemes in the world, covering advice and representation for most civil and criminal cases in all courts up to the House of Lords/Supreme court. By the mid 1980s most of the population could benefit from legal aid and many lawyers in private provided legal aid services. LASPO- Legal Aid Sentencing and Punishment of Offenders Act 2012 By the mid 1990s, the cost of English aid system had reached around 2 Billion pounds. Much of that expenditure was for criminal cases, but a significant proportion provided advice and representation for citizens involved in civil disputes, family disputes, and those wishing to challenge decisions of government and public bodies. Since that time successive governments have modified and reduced the scope of the legal aid system, particularly in relation to civil and family cases. The most recent and dramatic change to legal aid was made by LASPO act 2012 that came into effect in April 2013. To save money on the justice system budget the Government removed from the scope of the legal aid system most civil and family cases including many cases that affect the most vulnerable groups in the society. Around 623, 000 people each year involved in legal problems and disputes who had previously been helped through legal aid system are no longer able to access this assistance. These are the people with common, everyday legal problems such as debt, issues with the benefits system, poor treatment by the employers etc. Effect of LASPO 1. The effect of LASPO 2012 on the providers of legal advice for civil and family issues, particularly not-for-profit advice agencies, has been very significant. 2. The LASPO 2012 changes have led to cutting back of services and the closure of advice centres. It is thought that the reduction in the availability of advice and representation will lead to two different outcomes. a. First, many people will not attempt to enforce their rights or pursue remedies or entitlements. They will simply ‘lump it’ and live with whatever the consequences might be. This is the most basic barrier to access to justice. b. Second, people who wish to pursue their legal rights in the court will have to do so without the legal advice or representation (as litigants in person or LIPs) unless they are able to pay for legal services. Evaluation of LASPO 2012

Types of ADR (Alternative Dispute Resolution) Processes 1. Arbitration: This is private, confidential determination of a dispute by an independent third party. The arbitrator makes a decision according to law. The arbitrator’s decision, known as award is legally binding and can be enforced through courts. An arbitration hearing may involve the use of an individual arbitrator or a tribunal which can consist of any number of arbitrators- though some legal systems insist on having odd number to avoid a tie. 2. Early Neutral Evaluation: This is a private process in which a neutral legal professional (usually a retired judge) hears a summary of each party case and gives a non-binding assessment of merits. This can be used as a basis fpr settlement or for further negotiation. 3. Expert determination- A private process in which an expert neutral party is appointed to decide the dispute and the expert’s decision is binding on the parties. 4. Mediation: This is the most popular ADR process in which a neutral third party assists the disputing parties to reach a settlement. The process is voluntary and non-binding, although binding agreement can be enforced in the contract. Used mostly in commercial disputes, family matters, neighbor disputes. This is mostly focussed on problem solving rather than emphasis on strict legal rights. This is often said to produce win/win situation rather than win/lose situation. It is said to be better than litigation because it is cheaper, quicker, and flexible; capable of achieving creative solutions 5. Conciliation: This is similar to mediation but in this the third party “neutral” takes a more active role, deliberately suggesting ways in which the parties may reach the agreement and it is used commonly in employment disputes. 6. Med-Arb: This is a hybrid process which combines mediation and arbitration. The parties attempt to reach a mediated settlement but if after an agreed length of time no settlement can be achieved, the mediator will arbitrate the dispute and give a decision. 7. Ombudsmen: These are independent dispute and complaint handlers who investigate and rule on complaints from members of public about poor administration service by government departments and about public and private service delivery. Reasons of using ADR: 1. The interest in ADR, and in particular mediation can be traced to the publication of the Woolf reports in 1995 and 1996. Lord Woolf heavily encouraged the use of mediation as a means of parties resolving disputes rather than using court processes. Lord Woolf promoted mediation because in his view, it would save

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court resources and because he believed it would be cheaper for litigants than going to court and would offer quicker results. In 1995 ‘Interim report’ Lord Woolf stated that the courts had an important role in providing information about ADR and encouraging its use in appropriate cases. This encouragement was strengthened in the 1996 ‘Final report,; which stated : “The court will encourage the use of ADR at case management conferences and pre-trial reviews, and will take into account whether the parties have unreasonably refused to try ADR.” a. This meant that if a litigant unreasonably refused to try ADR the judge would be able to impose a financial penalty when the case came to trial. So, for example, a litigant who won their case might not recover their legal costs from the losing side, even though this is normal rule in ligation (the losing party pays the winning party). In late 1990s and early 2000s, enthusiastic judges in the courts around England collaborated with mediation providers to set up court attached mediation schemes offering no or low cost, time limited mediation, held on court premises for litigants who had already commenced court proceedings. In the case of Cowl v Plymouth City Council [2001] EWCA Civ 1935 Lord Wolf held that as a matter of law , parties are required to consider ADR before starting legal proceedings where, particularly where public money is involved. This was followed more significantly by Dunnett v Railtrack plc [2002] EWCA 2003 in which the Court of Appeal held that Railtrack’s refusal to contemplate mediation prior to appeal (after it had been suggested by the court) was sufficient to deny them their legal costs. Government policy since the late 1990s has favoured the promotion of mediation for civil, commercial, and family disputes. It has also encouraged the use of mediation for government disputes and even the judicial review. The Government believes that the widespread use of mediation would reduce the expenditure on the justice system and legal aid and it would save legal costs for litigants. The potential value of various ADR processes, and in particular mediation, as a supplement to traditional court processes is clear. Mediation can lead to a conclusion of a dispute quite quickly and, as compared with the cost of trial, is likely to be less expensive for the parties. Mediation offers the opportunity for parties to engage directly in the settlement of their dispute. However, it is also clear from mediation research that the process may magnify power imbalances between the parties and weaker parties may be disadvantaged in mediation as compared with court proceedings.

Question: Diverse Judiciary Introduction: What is the issue? In England and Wales, the judiciary has historically reflected the composition of the Bar and its membership are drawn from mostly well-educated middle class white male barristers. The objective of selecting well-qualified lawyers to sit on the bench is to maintain the quality and reputation of successive generations of judges. In the recent years, there has been growing concern that although the quality of judiciary has remained high, its composition does not reflect either society at large or the characteristics of the modern legal profession. Over the last two decades eligibility for judicial office has been broadened so that most members of the legal profession are now eligible for legal appointment/ Since the early 1990s, there has been a growing recognition that although the eligibility for judicial office has been widened, these changes have reflected slowly in appointments to the entry level and very very little at the highest levels of the judiciary. Why does judicial diversity matter? In 2004, the Department for Constitutional Affairs issued a paper entitled “increasing diversity in the judiciary.” The paper set out some of the Government’s view on why judicial diversity is important. It is stated that if the make-up of the society is not reflective of the diversity of the nation, people may question whether judges are able to fully appreciate the circumstances in which people of different backgrounds find themselves. It has been suggested more recently that there are three important arguments for ensuring that the judiciary is diverse: equal opportunities, the legitimacy of the judiciary and the quality of judicial decision making. First, for equal opportunities, all properly qualified people should be given equal opportunities to apply and to be selected for judicial office. Well-qualified candidates should be selected on their merits and should not be discriminated. They should not be discriminated whether directly or indirectly on grounds of their gender, skin, colour, ethnic origin, class, sexuality, disability, etc. If equal opportunities are not given to candidates from underrepresented group, this will only raise suspicion that direct or indirect discrimination is influencing appointment. The concept of human equality implies that talent is randamly and widely distributed in society rather than being concentrated within particular racial groups. It is more likely that the best candidates will be recognised if only one searches more widely. Secondly, lack of diversity undermines the legitimacy of the judiciary as an institution.

The judiciary does not possess the ‘democratic legitimacy’ of government or Parliament. Indeed it suffers from what is referred to as a ‘democratic deficit.’ The judiciary therefore draws its legitimacy from public confidence in the competence of the judiciary and respect for their personal qualities. It is therefore unacceptable in a democratic society for an unelected institution that wields the power of the judiciary to be drawn from a narrow and homogenous group that reflects neither the diversity of the society nor the legal profession. As Paterson and Paterson (2012) also argue: Diversity in senior appointments is not simply a desirable goal, but a fundamental constitutional principle. At the very heard of the legitimacy of an independent judiciary are its claim to be able to deliver ‘fairness.’ A senior judiciary whose composition reflects an apparent lack of fairness runs the real risk of undermining its own authority. Lady Hale also argued that lack of judicial diversity affects the democratic legitimacy of the judiciary: In a democracy governed by the people and not by an absolute monarch or even an aristocratic ruling class, the judiciary should reflect the whole community, not just a small section of it. Thirdly, judges drawn from a wide range of backgrounds and life experiences will bring varying perspectives to bear on critical legal issues. It is thought that having a range of perspectives and values (core beliefs about what is good and right, and what is bad and wrong) within the judiciary will lead to a better debate and decision making. Significant Events Until 1990s, eligibility for most judicial appointments was limited to a qualified barrister who has been in practice for a number of years. A key justification for limiting judicial appointment to the Bar was the belief that experience as an advocate was the best preparation for judicial appointment. After the passing of the Courts and Legal Services Act (CLSA) 1990, the basic eligibility criteria was changed to rights of audience defined in s.119 of the Act as: the rights to exercise any of the functions of appearing before and addressing a court including the calling and examining of witnesses. The expected result was to break the Bar’s monopoly of eligibility for higher judicial office and to open up the bench to solicitors, other groups of legally qualified professionals, and ultimately academics. However, it did not really have the expected impact and re-established that experience as an advocate is the most important preparation for judicial office.

Until the mid 1990s, most appointments to the bench were made ‘by invitation’ by the Lord Chancellor rather than application. The appointments to the judicial posts were made on the basis of confidential consultation of the ‘secret soundings’ with the serving judiciary about senior members of the Bar. The process largely lacked transparency. A campaigning organization ‘JUSTICE’ in 1992 published an influential report entitled ‘The judiciary in England and Wales’ which made a number of bold recommendations on judicial appointments including: ● That the qualities and skills required of the judges should be established and articulated ● Those from whom appointmets are made should be broadened ● A reduction in the mandatory requirement age ● Restructuring judicial work to allow the appointment of permanent part-time appointments ● The option of embarking on a judicial career at an early age ● The introduction of term appointments at all levels for those who would prefer them Some of the proposals made by JUSTICE are still being discussed and yet to be implemented. In 1999 an independent report on the judicial appointments process was conducted by Sir Leonard Peach. His main recommendation was for teh establishment of a Commission for Judicial Appointments with responsibility for monitoring appointment procedures and acting as an Ombudsman for complaints. In 2001 a Commission for Judicial Appointments for established for England and Wales for considering complaints about the appointment system, auditing its operations, but NOT to appoint judges. The commision eventually recommended that it should be abandoned and that an independent Judicial Appointments Commission should be established to make judicial appointments. Until 2004, all the members of the House of Lords were male and white. In 2004, first ever woman member was appointed, Baroness Hale of Richmond. Still all members were still white and virtually all (including Baroness Hale) had attended Oxford or Cambridge. The change began in 2003 when the Secretary of State for Constitutional Affairs, Lord Falconer, issued a Consultation Paper setting out the Government’s reasons for establishing a new independent Judicial Appointments Commission. First, to reinforce the constitutional separation of powers between the...