Chapter 5: Civil Justice System (CJS) Flashcards
What is the civil justice system (CJS)?
The CJS is designed to resolve civil legal disputes between individuals and/or organisations
What is the purpose for bringing a case under the civil justice system?
One party sues the other usually for money, or some remedy in equity
What are the 5 areas of civil law that the CJS governs?
- Contract law
- Family law
- Tort law
- Property law
- Judicial review
What is the outcome/remedy after proceedings in a CJS?
Varies & complicated
What are the possible parties that may be invovled in a CJS claim?
- Varying individuals
- Groups
- Public bodies
- Corporations
Everyone basically
What is the nature of the CJS?
It is more complex than criminal justice system
- Involves more variety of disputes and expectations of the parties from civil courts
What is the Woolf Report, what incorporated the aims in the report??
What was the aim of this report?
Civil Procedure Rules came into force in April 1999, incorporating the Woolf Report which aims were to
- Reduce cost, delay and complexity, and to increase access to justice
What are the 2 courts that are part of the Civil Justice System?
What is there to note about each?
What is another court that hears civil cases sometimes?
High court (3 divisions)
- Family Division - marriage, children and the family (divorce, adoption, will)
- Chancery - finance and property (tax, bankruptcy)
- Queen’s Bench - most varied jurisdiction (contract & tort)
County Court
- Currently around 300 county courts exclusively for civil work
Magistrates Court
- Although most civil cases are governed by High Court & County Court, Magistrates Court has limited civil jurisdiction
What are the 3 roles carried out by the CJS?
3 functions
Dispute resolutions
- Resolves disputes between parties (including adjudication of claims)
Determination
- Provides authoritative determination of matters
Rule-making
- Formulated rules & principles for people to refer to the law
What are the 5 objectives/aims of the CJS?
1) Just
- Unbiased and serious decision making and provides the right to review or challenge the decisions
2) Accessible
- Should not be expensive
- Process and procedures should be user-friendly enough to understand
3) Efficient
- Procedure should not be cumbersome (hard to handle) and repetitive
4) Prompt/quick
- Quick in resolving disputes, no technical objections to delay proceedings
- To encourage parties to cooperate, to resolve their disputes
5) Effective
- Machineries of justice allowed to ensure compliance
- Certainty in the law
- There shouldn’t be a need to resort to other difficulties (another forum) to resolve their disputes
What were the old values/legal prciniples that were adopted for legal education for lawyers given by the CJS?
Pre-Woolf Reforms
- The ratio decidendi and obiter of the case
- Legal principles established in the case
- Legal rights established in the case
- Possible counter arguments to negate legal rights to distinguish the legal case
What were the 5 problems/issues with the CJS?
Pre-Woolf Reforms
1) Expensive
- Arising from the concept of ‘just’ proceedings - allowing free control of proceedings
- Allowing counsel to take any legal technical points to advance the client’s case
- This makes it slow, expensive, and complex
2) Delays
- The Civil Justice Review found that trial takes up to 3 years for county court, and 5 years for High Court
- Another problem - sometimes both lawyers will disregard time limits to create an opportunity to negotiate
3) Injustice
- Usually an out-of-court settlement is negotiated before litigants even reach the trial stage (excluding family and civil cases at Magistrates). Only 4% of cases filed go for trial; and these settlements are advantageous to provide quick disputes and reduce costs
- But leads to injustice -
1. The party that is strictly was entitled to the full sum, if brought to trial might significantly reduce the compensation
2. Party that is not liable to pay under law, may have to pay something else to claimant (to negotiate to not go through trial)
3. The settlement negotiated is a form of compromise and not actual law being at play
4) The Adversarial Process
- Encourages a tactical manoeuvre by the parties, rather than cooperation
- Would be way simpler and cheaper for each side to state what it alleged in the pleadings (for easy dispute)
5) Too much emphasis on Oral Evidence
- In the 20th century much of the information the judge needed could be provided on paper rather than to read it before trial
- This makes it slow, added cost and further delays
What was the general reform that was implemented by the Woolf Reforms?
introduction
Goal was to fundamentally change the litigation culture - which one of the first rules of the new Civil Procedure Rules are to enable court to deal with cases ‘justly’
- This objective/principle would prevail over all other rules in case of conflic
What are the 5 points of Rules 1.1(2) of the Civil Procedure Rules that incorporated the Woolf Reforms?
Main reforms
**“Dealing with a case justly includes, as far as is practicable -
- ensuring that the parties are on an equal footing;
- saving expense;
- dealing with the case in ways which are proportionate -
* to the amount of money involved;
* to the importance of the case;
* to the complexity of the issues; and
* to the financial position of each party;
4) ensuring that it is dealt with expeditiously and fairly; and
5) allotting to it an appropriate share of the Court’s resources, while taking into account the need to allot resources to other cases.”
What were the 2 desired outcome of the Woolf Reforms?
1) To avoid litigation through pre-trial settlements - litigation is viewed to be the last resort
2) The aim and objective of the civil justice process is to still attain cases that are “Justly”
- However, now definition of ‘just’ is now on (a) efficiency and (b) timeliness (to increase efficiency & timeliness)
- Which would result in (c) lowering costs
- Which would result in (d) increasing access to the CJS
What were the 5 reforms that was brought by the Woolf Reforms?
- Alternative Dispute Resolution (ADR)
- Pre-Action Protocols
- Unify rules of courts
- Case allocation
- Judges as case managers
What is an Alternative Dispute Resolution?
Woof reform
What is it?
- Legal aid for out of court resolutions
Why
- Courts should be the last resort
- More cost effective
- Time efficient
Methods
- Arbitration
- Mediation
- Conciliation
What are pre-action protocols?
What are the 4 innovations to this?
Woolf reforms
Introduction
- Pretrial procedures is the most key area of civil process, since few cases actually go to trial
1) Encourage cooperation between litigants
* More pre-action contact between parties
2) Documents disclosed and exchanged at early stage
* Earlier and fuller exchange of information
3) Principle of ‘all cards on table’
* Improved investigation before proceedings
4) Pre-action settlement
* A settlement before proceedings have commenced
What are the 3 unified rules of the courts?
Woolf reforms
- High court and County Court
- Plain English instead of Latin
- Reduce complexities
What is case allocation?
What are the 3 types of case allocation?
case allocation - allocating to value and complexity
1) Small claims
- Max £10,000
- No strict rules of evidence
- Minimum £1,000
2) Fast track
- £10,000 - £25,000
- Simplified procedures
- Expert evidence on paper
3) Multi track
- > £25,000
- Active case management by judges
What is meant by ‘judges as case managers’?
IMPORTNAT
Woolf reforms
Most significant innovation to the 1999 reforms - case management means the courts will be the active manager of litigation
The Civil Procedure Rules firmly places the management case in the hands of judges
- With Rules 1.4 emphasising that court’s duty is to take a proactive role to manage cases
What are the 3 changes/reforms that were made for ‘judges as case managers’
Woolf Reforms
1) Judges involved from pre-trial to monitor/encourage efficiency of the trial
* In the trial, they are able to advice the parties to negotiate on matters
2) Monitor progress of case
* Using technology to monitor
3) Impose timetable
* Create deadlines
* Penalties for parties purposely delaying
What is the actual procedure of judges being case managers?
Woolf Reforms
Procedure
- Once proceedings have started, court’s power will be triggered to filing a defence
- When the defence has filed, trial dates will be fixed and will be difficult to postpone
- Courts will first need to allocate the case to 1 of 3 tracks - which will determine the future contract of the proceedings
- At various stage in the dispute, the court will actively promote settlement by Alternative Dispute Resolution (ADR)
Note for precedure (3) - 3 tracks
1. Small claims track
2. Fast-tract
3. Multi-track
How to determine the appropriate track
1. Determine whether a case should be subject to summary judgement, or
2. Whether a stay of proceedings should be given for alternative dispute resolution; and
3. If neither applies, should allocate hearing or whether the matter can be the subject of paper determination of the allocation to a particular track
What is the nature of principles for civil justice?
What are the 3 principles of civil justice?
Principles are based on natural justice, which structure the civil justice, and all process of civil justice should uphold these values
3 principles
- Intergrity
- Participation
- Open Justice
What is the intergrity principle?
principles of civil justice
Relates to the requirement for an independent & impartial tribunal, & the prohibition of bias
- For criminal cases - Integrity of its proceedings preserves ‘moral authority’ of the courts which justifies punishment of criminals
- For civil cases - Court requires a similar moral authority to determine liability for breach of civil law
Integrity also reflects the requirement that evidence be true and accurate, so D’s or parties’ rights are protected
- Balanced evidence between both parties allow the court to create an accurate decision
What is the participation principle?
What Act of Parliament limited the legal aid for civil cases?
principles of civil justice
Court must give each party to a dispute an equal chance to present their case & be heard
- To enable/allow a person to give evidence and respond to questions aimed at elucidating the issues and possibilities of their resolution
- This also allows the judge to come to an accurate decision
The limitation of legal aid for civil cases was due to the Legal Aid, Sentencing & Punishment of Offenders Act 2012 (LASPO 2012)
1) Criminal Defence Service stated -
- No change proposed, not proper to restrict legal aid
2) Changes were made to legal aid for Civil and Family matters
- Issues placed on a “spectrum of objective importance”
3) Cases where an individuals’ life is at stake, facing intervention by the state in family affairs
- Which could result in their children being removed from their care
What are the 2 cases for participation principle in civil justice?
What were held in each case?
Airey v Ireland [1979]
- Qualified right, not absolute right
Steel & Morris UK [2005]
- The UK in breach of Article 6 (right to a fair trial)
What is are the 10 areas of civil & family law to exclude from legal aid?
LASPO 2012
- Ancillary relief cases (dispute cases on financial provision upon divorce) where domestic violence is not present
- Clinical negligence
- Consumer & general contract cases
- Education
- Employment (other sources can help - trade unions)
- Welfare benefits
- Debt matters where the client’s home is not at risk
- Other housing matters other than repossession, immediate risk of homelessness
- Immigration cases (other than than detention & asylum)
- Private law (children & family cases) where domestic violence is not present
What are the 4 areas of civil & family law to retain/keep from legal aid Act
LAPSO 2012
- Asylum
- Immigration detention cases
- Claims against public authorities
- Allegations of abuse and sexual assault
What are the 4 excpetional fundings under legal aid - where its necessary to fuilfil domestic and international legal obligations (ECHR/EU)
LAPSO 2012
- Objective importance of the issue
- Litigant’s ability to present their own case
- Availability of alternative sources of funding
- Availability of other routes to resolutions
What are the 6 effects after the Legal Aid, Sentencing and Punishment of Offenders Act 2012(LAPSO 2012)?
- Fewer people can access financial support for legal cases
- Exceptional case funding has failed to deliver for those that need it
- Public education and legal advice are inadequate and disjointed (incoherent)
- High court & tribunal fees preventing people pursuing legal claims
- Bureaucracy (complex administrative procedures/cases) in the Legal Aid agency is costly and time-consuming
- Excessive bureaucracy in the Legal Aid Agency adversely costing the efficiencies of the legal aid system in general
What is the Open Justice principle?
principles of civil justice
Justice must be seen to be done. The requirement that a court should give reasons for its decisions & judgment must be pronounced publicly (court must be transparent about their decisions)
Note
- There may be a departure from that principle where that is necessary in the interests of justice. Public interest immunity is used when the government believes that disclosure of documents is not in the public interest (Conway v. Rimmer (1986))
What are the 2 cases for Open Justice principle?
principles of civil justice
- Flannery v Halifax Estate Agencies Ltd. [2002]
- Al Rawi v Security Services [2011]
Flannery v Halifax Estate Agencies Ltd. [2002]
open justice
Facts
- Appeal against a judge’s decision that he preferred the D’s expert evidence rather than the Claimants
- Judge didn’t give reasons for the preference
Held
- COA allowed his appeal
- Holding that failure to give reasons breached the principles that the court had to show fairness to both parties
- On grounds that the duty to give reasons is part of due process, and its ‘rational’ has two elements
- Fairness requires that the party that lost knows the reasons, to ensure he is not ‘misdirected’
Al Rawi v Security Services [2011]
open justice
Held - Lord Dyson
- Open justice is not just a ‘mere procedural rule’ - it is a ‘fundamental common law principle’
- The principle of open justice is backed up by the rules of natural justice
- Meaning that a party ‘has a right to know the case against him and the evidence on which it is based’
How has Privatisation effected the CJS?
The result of increased court fees, legal aid cuts, compulsory mediation and other reforms (Woolf Reforms), which aim to discourage litigation
The actual effect is an inevitable privatisation of forums such as -
- Mediation - need to hire a mediator/third party to dispute cases
- Arbitration - formal method of a dispute resolution which involves a third party who makes a binding decision
- Conciliation - an alternative dispute resolution to solve matters out of court
What are the effects on ROL after privatisation of the CJS?
What is one academic view on this?
ROL is a fundamental doctrine where everyone must obey to the law. One of Lord Bingham’s ‘essential ingredients for the ROL is a well-functioning civil justice system
- To allow citizens to assert their substantive civil rights against the state itself, the CJS plays a ‘truly essential role’ in furthering the ROL
- Meaning citizens are asserting their rights, not allowing the state to exploit their power above the law
Prof Hazel Genn
- Legal rules should be known and applied in public (principle of open justice)
- In privatising the resolution of civil and family disputes we may be undermining critical rule of law protections
What academic view gives the 2 effects on the common law system after privatisation of the CJS?
Prof Hazel Genn
1) Privatisation will affect the development of law
- Increasing privatisation will lead to fewer precedents and potential erosion of common law
2) High rates of settlements and diversion of cases to arbitration and mediation are likely to have a particular impact
- In commercial law, leading to loss of guidance and ‘thinning out’ of the common law
In 2015 interim report Briggs LJ, what were his 3 stages for the recommendation of an online court?
1) Creation of an Online Court (HMOC) for claims up to £25,000, intended to be used by litigants without the need to hire lawyers
- This will allow minimal costs shifting where representation is used (Online Dispute Resolution)
- Allowing litigants to resolve and upload key documents and evidence by themselves
2) Use of ‘case officers’ at the conciliation stage - to assist judges with routine work and certain stages in the Online Court
- Used to **free up judicial time **
- Case officers will be independent from the government and subject to a system of authorisation, direction, & supervision of the LCJ
- Required to have certain level of legal qualification and experience and may be called “Case Lawyers”
- Parties will have an unqualified right to have a case officer’s decision reconsidered by a judge
3) Determination stage
- Where the disputed cases which can’t be settled are detained by a judge
- A face to face trial, video or telephone hearing or determination on the documents where it is most appropriate
His recommendations for an Online Court were split into 3 stages
What are the 9 benefits of an online court?
- Affordable
- Accesible
- Intelligible
- Appropriate
- Fast
- Consistant
- Focused
- Fair
- Proportionate
What are the 3 critisisms of an online court?
1) May create a 2 tier justice system
- Where the rich and big corporations can easily have access to open justice system at trial (physical court)
- Where smaller business and poorer litigants have access to online courts
2) Significant/important factual cases can’t properly be dealt with on paper or via an online court
- Judges are able to adequately/properly assess credibility if live evidence is given in person
3) May increase the justice gap
- If access to internet and technology is limited to the poorest and most vulnerable (i.e. the elderly)
