Adversarialism in the Civil Justice System

Question 1

What were the 6 problems that Lord Woolf identified in the Civil Justice System?

Answer 1

1. Cost of litigation exceeds value of claim
2. System favours the wealthy
3. Cannot predict how long litigation will last
4. Lack of a coherent structure
5. Lack of openness and cooperation between parties
6. Rules/Court orders often ignored

Question 2

What was Lord Woolf’s main aim in suggesting certain reforms?

Answer 2

To make Civil Justice more accessible to the individual and to small businesses.

Question 3

What objectives can be found in the Civil Procedure Rules 1998 (2)?

Answer 3

(a) ensuring that the parties are on an equal footing;
(b) saving expense
(c) dealing with the case in ways which are proportionate -
(i) to the amount of money involved
(ii) to the importance of the case
(iii) to the complexity of the issues; and
(iv) to the financial position of each party.

Question 4

What are the 3 tracks for civil claims to follow according to Woolf?

Answer 4

Small claims track
Fast track
Multi track

Question 5

Since the implementation of the Woolf reforms, how has the process changed?

Answer 5

1. Courts are responsible for setting timetables and ensuring that rules are complied with, they can impose sanctions on parties that do not comply.
2. Costs are fixed to save expense.
3. Any party can offer to settle the dispute with ADR and there will be sanctions for parties who turn down reasonable offers.
4. Encouragement to use ADR and to use litigation as a last resort.

Question 6

What problems have come from the implementation of the CPR?

Answer 6

Cost of civil litigation has increased severely - i.e. in 2009 a boundary dispute defendant had to pay £70,000 to settle a claim involving approx. 6 square metres.

Question 7

What reforms did Lord Justice Jackson recommend in 2008?

Answer 7

1. Legal expenses should be proportionate to the nature and complexity of the case.
2. Qualified one-way costs shifting (a claimant who is unsuccessful should not be ordered to pay the defendants costs).
3. fixed costs in fast track cases.

Question 8

Since the Jackson Reforms, what can courts now make an order for?

Answer 8

Courts can:

1. Extend or shorten time limits laid down by CPR.
2. Adjourn a hearing or bring it forward.
3. Require a party to attend court.
4. Suspend proceedings.

Question 9

What did Mitchells Solicitor fail to do in the case of Andrew Mitchell MP v News Group Newspapers Ltd (2013) and how did this affect the case?

Answer 9

Solicitor failed to submit the balance of costs 7 days before the case management conference as was required by the court.
Meant that Mitchell would not be entitled to be paid his costs.
Both appeals for this decision were dismissed.

Question 10

What did the judgment in Denton v T H White introduce?

Answer 10

a 3 stage test to allow judges to decide whether relief should be given from sanctions (generally if the breach of order was insignificant nor serious then relief will be given)

Question 11

Marc Galenter on the adversarial nature of negotiation.

Answer 11

“Negotiation of disputes is not an alternative to litigation. it is only a slight exaggeration to say that it is litigation’

Question 12

What is the win-lose approach in negotiation?

Answer 12

Negotiation approach that tries to get the best for their client, whilst ensuring that the other party is exploited for gain - much more aggressive.

Question 13

Carrie Menkel-Meadow on the problem solving approach to disputes.

Answer 13

Seeks to demonstrate how negotiators ‘can more effectively accomplish their goals by focusing on the parties’ actual objectives and creatively attempting to satisfy the needs of both parties, rather than focusing exclusively on the assumed objectives of maximising individual gain’

Question 14

What are the goals that Roger Fisher and William Ury believed the result of a negotiation should fulfil?

Answer 14

1. A fair and reasonable agreement;
2. An agreement that is sufficient in expression and operation; and
3. An agreement that improves, or at least does not harm the relationship between the parties.

Question 15

What is the main ethical issue with negotiation?

Answer 15

Whether it is acceptable to lie.

Question 16

What does Rule C9 of the Bar Standards Board Handbook say about lying?

Answer 16

‘you must not knowingly or recklessly mislead or attempt to mislead anyone’

Question 17

Professor Welaufer on lying in negotiations?

Answer 17

‘effectiveness in negotiations is central to the business of lawyering and a willingness to lie is central of one’s effectiveness in negotiations’

Question 18

Niccolò Machiavelli on lying in negotiations.

Answer 18

“You must be a great liar…a deceitful man will always find plenty who are ready to be deceived’.

Question 19

What did Justice Walker say about the etiquette of solicitors in commercial litigation? Ernst & Young v Butte Mining

Answer 19

“Heavy, hostile commercial litigation is a serious business…litigation solicitors do not owe each other duties to be friendly…Nevertheless, even in the most hostile litigation…solicitors must be scrupulously fair and not take unfair advantage of obvious mistakes.”

Question 20

Define mediation:

Answer 20

A voluntary, flexible process conducted confidentially in which a neutral person actively assists the parties to work towards a negotiated binding agreement of a dispute or difference, with the parties in ultimate control of the decisions both to settle and the terms of resolution.

Question 21

How does Dunnett v Railtrack show that the courts strongly encourage mediation over litigation?

Answer 21

Court of Appeal took into account the fact that Railtrack had refused to attempt mediation to resolve the dispute when it decided not to award it costs, even though it had won the litigated case.