Access To Justice Flashcards
what is ADR (Alternative Dispute Resolution)
ADR refers to methods of resolving legal disputes without going to court. > Includes negotiation
what are some benefits of ADR?
> Often quicker
cheaper
using courts can be costly in money and time
court can be traumatic experience and result may not produce justice
proceedings open to public,press
individuals and businesses seek to use these alternative methods more regularly
who uses ADR?
> Individuals and businesses are seeking alternate methods more regularly
Encouraging ADR and funding of cases
what was the WOOLF report?
WOOLF Report (during the 90s); this was a report aimed to address the criticisms of the civil justice system (i.e. high costs and delays)
> Led to the Civil Procedure Rules (CPR) in 1999; for example this allows judges to ‘stay’ court proceedings temporarily to allow for ADR to take place
what did the WOOLF report lead to?
> Led to the Civil Procedure Rules (CPR) in 1999; for example this allows judges to ‘stay’ court proceedings temporarily to allow for ADR to take place
what is the access to Justice Act 1999?
> Brought new ways of assessing whether a litigant should be funded (likely to encourage ADR as it looks for alternative dispute resolution to save public funds)
what is Negotiation? (definition)
Anyone who has a dispute with another person can always attempt to resolve it by negotiating directly with them; this is negotiation (i.e. child custody cases)
what is an advtange of negotiation?
Advantages include: completely private; quickest and cheapest method of ADR; solicitors can negotiate on the behalf of client
what are some disadvantages of negotiation?
Disadvantages include: can be costly if lawyers involved (and longer negotiations means higher cost);
cases can drag on for years and reach a settlement ‘at the door of the court’ (i.e. morning of trial)
what is Mediation? (definition)
Mediation is where a neutral mediator helps the parties reach a compromise; they consult with each party and find a common ground
A mediator will not usually tell the parties their own views, but can be asked for his opinion
mediation is not legally binding and can be broken with no reprocussions but future cases in the same topic can be impacted on this
what are some Mediation services examples?
> West Kent Independent Mediation Services (run by impartial volunteers with a meeting between each party; parties are in control)
Examples include CARCASS Children issues / CEDR for companies
Advantages of mediation;
- Mediation is flexible (can choose exact type of mediation wanted)
- Parties are in control and make the decisions
- Saves a great deal of money (usually around £1500)
- Decision can be based on common sense and compromise ,not the law
- Allows for future relations; parties are more likely to settle
- Helps to narrow down matters; trial will be shortened
- Avoids the winner/loser result of court proceedings
Disadvantages of mediation?
- No guarantee the matter will be resolved (may have to go to court)
- Amounts paid in mediated services often lower than in court
- Mediation requires a skilled mediator (can be difficult with an inexperienced mediator)
what is Conciliation?
Conciliation is incredibly similar to mediation; a neutral third party helping to resolve disputes
>instead, the conciliator plays an active role
>conciliation is not legally binding and can be broken with no punishment or enforcement
> Energy Charter Treaty offers a conciliation procedure for transit disputes; ACAS can support before an industrial tribunal)
what is an advantage of conciliation?
- Saves a great deal of money (court cases can go up to £100000)
-decisions can be based on common sense and compromise not law
-allows for future relations
-helps to narrow down matters and trial will be shortened
-avoids the winner/loser result of court proceedings
-parties are more likely to settle
what are disadvantages of conciliation?
no guarantee the matter will be resolved may have to go to court anyway; additional costs and delays could occur
what is litigation?
> Process of resolving disputes through the court system
Legally binding decision
formal
time consuming
one example of a lititgation case? (cole)
Ashley Cole 2010 (suing the News of the World due to a false story alleging a homosexual sexual encounter with a DJ; the newspaper issued an apology and £100
what is Arbitration?
Arbitration includes a neutral third party which hears a dispute; the hearing is informal with a mutually selected arbitrator;
- the arbitrator will settle the dispute with a final legally binding decision
- the arbitrator should have a legal background and may be specialised
what is an example of arbritration?
- An example of arbitration is the Sport of Arbitration (i.e. allowing Jamaican sprinters Powell and Simpson to have doping bans cut)
can you appeal for the Sport of Arbitration?
> Due to the specialisation of the Sport of Arbitration it is incredibly difficult to have appeals - this is limited recourse
another example of arbritration? (longer+case)
-boxing
> Fury and Wilder were contracted for three fights; Fury refused to hold a third and instead wanted to fight Joshua; Wilder took Fury to the Sport of Arbitration who forced Fury to fight a third fight; cannot shake this decision; another example of limited recourse
what are some Advantages of arbitration?
> Efficient dispute resolution; cost efficient and quicker than litigation
Avoids hostility and is flexible
Simple rules for evidence and procedure
Mainly done behind closed doors (other than cases which may affect public policy)
what are some Disadvantages of arbitration?
> Limited recourse; final decisions are difficult to challenge and may be barred forever from airing the underlying issue
Uneven playing field; may work in favour of large companies and employers who have deeper pockets and more power compared to an employee
Questionable objectivity
Lack of transparency; largely behind closed doors
Rising costs; increasing due to more use
what are Tribunals?
Specialised courts that deal with specific types of disputes such as employment issues or immigration cases.
> Less formal than regular courts and are designed to be quicker
>cheaper
> Encourages individuals to bring their own cases and not lawyers; legal funding is not available largely (only for mental health review and protection of children)
> No formal rules of evidence; both parties given an equal chance
what are some types of tribunals?
social security tribunals
rent tribunals
immigration tribunals
mental health review tribunals
employment tribunals
what Controls tribunals?
appeal system and Council of Tribunals (reports but has little power)
what are the methods of hearings in tribunals?
Method of hearing is informal and private except in employment tribunals which are more formal like court
they all operate in different ways as they were set up in different times
what members do tribunals have?
> Usually have a panel of three; legally qualified chairman and two laymembers with a particular expertise within the tribunal
what are Industrial Tribunals - 1964?
> Covers all aspect of work related disputes (i.e. dedication of wages and unfair dismissals)
Advantages of tribunals?
- Cost effectiveness (encouraged to represent yourself; rare for costs to occur)
-speedy hearings
-simple procedures (flexible not bound by rules)
-public funding available for some tribunals
Disadvantages of tribunals?
- Those who are not represented have a lower chance of winning
- Vast volume of cases; cases are being delayed (i.e. Darnell v UK 1984 took nine whole years to be heard)
- In ⅙ of cases the chairman fail to help those representing themselves
- Public funding is not available for some cases
- Some people may find themselves opposed by a lawyer
how is Legal aid assigned to an individual?
Legal aid requirements are largely based on the seriousness of the problem and the merits of the case
> Must be either at risk of abuse or serious harm (i.e. domestic abuse,homelessness)
> Merits must satisfy the requirements of the Merits Regulations (i.e. likelihood of a successful outcome at trial potential benefit gained from providing legal services)
what are some difficulties with seeking legal aid?
-cost
-questions over cost and methods of payment
-solicitors are 80£ per hour,300£ from top firms
-all people can attempt to access lawyers but not all can afford (marxism would argue its unfair and unjust, utilitarianist would argue that as long as everyone can access it its fine)
-fear when dealing with lawyers; intimidation (diverse vocabulary may fuel the inferiority of the client; may feel inarticulate)
lack of knowledge, nearest solicitors/specialists
is there Access to Justice ?
-theres an open system for access to justice allowing for legal aid, like schemes which make the law more accessible (CAB)
Rushcliffe Committee
> Start of government-funded legal aid and advice
Seen as important as medical services (paired with NHS in 1945)
Legal Aid and Advice Act 1949
> Set up for civil cases (extended to criminal cases in 1964)
80% of the population was eligible; for poor-moderate means
Due to inflation by 1993
what were some Problems with the legal aid and advice act?
> Inadequate access to good quality information and advice
inability to control legal aid
Need to target legal aid based on need and within a budget
what was the solution to legal aid and advice act?
access to justice 1999
Legal Services Commission (LSC)
- Made up of the Community Legal Service (CLS) for civil cases and the criminal defence servuce (CDS) for criminal cases
> Members are appointed by the LC with a wide range of expertise
> Manages and supervises both schemes and funding; develops local, regional and national plans to match delivery of legal services to identified needs and priorities
how is funding maintained by the LSC
> LC responsible for determining funding; due to the limit/cap on funding available, people may be refused
Two different budgets for the CLS (civil and family)
What cases get priority for funding by the LSC?
> Child Protection and the welfare of children
Proceedings with loss of life or liberty
Domestic violence
Social welfare cases
allegations of personal injury
death due to negligence damage to property
Information providers for legal services can be found where?
libraries and community centres (leaflets reference material)
-general help providers CAB(citizens advice bureau) advising on action, basic advice and assistance
what Specialist help provide/have contracts with the LSC?
-3,600 solicitor firms have contracts with the LSC
-CAB/law centres can be given contracts to provide gov-funded legal advice (countering advice deserts)
-Trade Unions like RAC and AA(breakdown services) or shelters
Trade unions also fund cases sometimes depending on the case
what is the Community Legal Service (CLS)
has 1500 staff at 12 offices
provides services for civil law involving:
>General information and availability of legal services
>legal advice
>preventing or settling disputes on legal rights and duties
>advice, assistance, and representation by lawyers and non-lawyers
>covering services and funding
what is the Legal Aid Agency?
Established under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO)
> Government body responsible for administering legal aid in England and Wales.
> Replaced the Community Legal Service (CLS) and Criminal Defence Service (CDS)
> Works to ensure access to legal representation for those who cannot afford it.
what is the criteria for legal funding?
- Disposable income(is gross salary with deduction of costs ) and disposable capital is the assets of the person
-income support, job seekers allowance qualify automatically
-availability of money in CLS fund
-and availability of other services like ADR - Prospect of success; public interest; case success
what does the Criminal Defence Service (CDS) do?
Securing that individuals involved in criminal investigations or proceedings have access to advice, assistance and representation as the interests of justice require
CDS advice, assistance and representation is?
> Duty solicitor (Access to Justice Act 1999); advice and assistance
One hour work; means test once out of custody
Representation; covers cost of preparing a case and at court
how does one qualify for the means test?
- £12475 p.a or less; automatically qualify for the means test; eligible subject to Interests of Justice test
- £22325 p.a or more; automatically fails the means test; not eligible
if between those numbers a FULL MEANS TEST is carried out
when was the advice agency CAB established?
1938 and around 1,000 in the country
as an advice agency what do Trade Unions offer?
Trade unions; i.e. RAC and AA (within their specialism)
what has happened to the advice agency of law centres?
Law centres; reduced due to lack of funding; offers free advice in catchment area
what is the CDS?
duty solicitors advice and assistance for up to an hour
what is the FRU? (advice agency)
FRU (Free Representation Unit); run by the Bar since 1992 - barristers represent client with no fee (2000 cases/yr)
what does ALAS offer ? (advice agency)
ALAS (Law Society); free initial interview; also has an Accident Line (free phone service for accident victims to get in touch with solicitors)
what will solicitors offer? (as an advice agency)
Solicitors; may offer cheap/free initial interviews
Problems with funding in civil cases?
-advice deserts, especially in rural areas
-low eligibility levels
-lack of funds
-non-availability (funding is not available for all cases)
problems with funding in Criminal cases?
- Interests of Justice test (very strict; no repeat offenders)
- Means test (also very strict; only 25% qualify compared to 80% in 1945)
- Budget (has not risen with inflation; less money year-on-year)
- Lack of lawyers (fees have been cut)
Conditional Fee Agreements
> Aim to improve access to justice but can still involve costs like disbursements or the opponent’s fees.
Allows clients to avoid paying legal fees if their case is unsuccessful.
no win no fee agreements
Advantages of conditional fees
-Have been used in over 50000 cases for personal injury claims; increased access to justice for many
- Government have considered reform for further justice and ease
Disadvantages of conditional fees
- Poorest clients cannot afford insurance or disbursements
- Weaker/riskier cases are much harder to find a solicitor
- Difficult to estimate cost before the case
-Two of the largest claims firms have gone out of business; suggests that CFAs do not have sufficient profit
access to justice definition?
Ensuring that individuals have the ability to resolve legal disputes effectively whether through courts or alternative methods
ADR (Alternative Dispute Resolution)
Methods of resolving disputes without going to court including negotiation
Negotiation
A method where parties in a dispute communicate directly to resolve their issues without involving third parties. It is private flexible
Mediation
A neutral mediator assists parties in reaching a compromise by exploring common ground but does not impose a decision. Mediation is not legally binding but allows parties to retain control over the resolution process.
Conciliation
similar to mediation but conciliator takes on a more active role
Arbitration
A formal process where a neutral arbitrator hears the case and makes a legally binding decision. It is often quicker and more cost-effective than court but offers limited recourse for appeal.
Tribunals
Specialised courts designed for specific disputes such as employment or immigration cases. Tribunals are less formal
Lay Members
Non-legally trained individuals who assist in tribunal panels by contributing their expertise and knowledge in specific areas related to the dispute.
Litigation
The process of resolving disputes through the court system leading to a formal legally binding decision. time consuming and expensive
Sport of Arbitration
A specialised form of arbitration dealing with disputes in sports such as doping or contractual conflicts. Decisions are binding with limited opportunity for appeal
Legal Aid
Government-funded support for those who cannot afford legal representation or advice prioritising cases like domestic abuse, homelessness, criminal proceedings based on financial eligibility and case merits
Solicitor
a legal professional who advises clients and prepares legal documents
Legal Services Commission (LSC)
A former organisation managing the funding and delivery of legal aid services overseeing both civil (CLS) and criminal (CDS) legal support.
Community Legal Service (CLS)
A division of the Legal Services Commission providing civil law support through advice, representation and funding for elgibile individuals
Criminal Defence Service (CDS)
A division of the Legal Services Commission offering advice and legal representation to those accused of crimes including free advice from duty solicitors in custody.
Lord Chancellor
A senior government official responsible for overseeing the judiciary, legal aid and court systems in england and wales
Citizens Advice Bureau (CAB)
A network providing free impartial advice on legal, financial, and social issues to individuals across the UK
Trade Unions
Organisations that represent workers often providing legal support and advice within their areas of expertise such as employment or society
Duty Solicitor
A solicitor available at police stations or magistrates’ courts to provide free legal advice and representation to individuals in custody.
Advice Desert
An area where access to legal advice is severely limited due to a lack of solicitors or services offering affordable assistance.
Conditional Fees
“No win no fee” agreements allow clients to avoid paying legal fees if they lose their case but often require insurance for other costs.
Interests of Justice Test
A criterion determining eligibility for legal aid in criminal cases ensuring representation is provided only where fairness and justice require it.
Means Test
An assessment of an individual’s income and assets to determine eligibility for legal aid based on financial need.
