Contract law: Civil proceedings and legal services

Question 1

Describe how the Civil Procedure Act 1997 changed the English civil process.

Answer 1

The rules are going through constant reviews and updates:
- Case control is computerised to make it more efficient.

• Parties must cooperate with each other during proceedings to maintain efficiency.
• Some matters are exclusively reserved for county court (eg small money claims). Personal injury claims of more than £15,000 or more, claims where an Act of Parliament requires a claim, and specialist High Court claims are reserved for the High Court.
• Most claims are begun by a multipurpose form and a subsequent response pack.

Question 2

Describe the English civil process

Answer 2

• Civil Procedure Rules are the same for county court and High Court.
• Their ‘overriding objective’ is enabling the court to deal with cases justly. Practice directions give interpretive guidance.
• They tell parties and representatives what the court will expect of them, as well as what they can expect of the court.
• Pre-action protocols exist for cases of clinical disputes and personal injury. They are intended to ‘build on and increase the benefits of early but well-informed settlements’. They are used to resolve disputes without litigation.
• Establish an appropriate settlement.
• If a pre-action settlement cannot be reached, they lay the ground for expeditious conduct of proceedings.

Question 3

What is “recommended” for civil proceedings in contract law? (4)

Answer 3

• Claimants send a detailed letter of claim to the proposed defendant.
• The defendant should reply within 21 days of posting (for personal injury cases).
• The parties can agree to use expert evidence.
• Both parties are encouraged to use an alternative dispute resolution

Question 4

What does active case management include? (12)

Answer 4

• Encouraging parties to cooperate.
• Identifying issues at an early stage.
• Deciding quickly which issues need full investigation.
• Deciding the order in which issues need to be resolved.
• Encouraging an alternative dispute resolution.
• Helping parties to settle the whole or part of case.
• Fixing timetables.
• Weighing benefits vs costs of procedural steps.
• Dealing with case without the need for parties’ attendance in court.
• Use of technology.
• Ensure quick and efficient trial.
• Deal with as many aspects of the case as possible on the same occasion.

Question 5

Damages ()

Answer 5

Damages are compensatory. Compensatory damages:
No more than to recompense the injured party.
Aggravated damages:
Awarded in relation to damaged suffered to the injured party’s dignity and pride.
Exemplary damages:
When the person who committed the tort intended to profit from it.
Nominal damages:
Cases which involve a ‘matter of principle’ but no loss was suffered
Contemptuous damages:
Claimant wins case but has suffered no loss and did not impress the court with their standard of behaviour.

Question 6

Describe the Legal Services Act 2007

Answer 6

Comprehensive and radical changes:
Legal Services Board to provide consistent oversight regulation of regulators.
Objective for the Legal Services Board like promotion of the public.
Regulators should separate their regulatory and representative functions.
Office of Legal Complaints to handle consumer complaints.
Facilitation of lawyers and non-lawyers working together.
The legal profession is divided into solicitor and barrister.
Solicitors could be considered general practitioners. However, most are experts in a particular area of law.
Barristers might have a wide range of work.

Question 7

Describe the Legal Services Act 2007

Answer 7

Comprehensive and radical changes:
Legal Services Board to provide consistent oversight regulation of regulators.
Objective for the Legal Services Board like promotion of the public.
Regulators should separate their regulatory and representative functions.
Office of Legal Complaints to handle consumer complaints.
Facilitation of lawyers and non-lawyers working together.
The legal profession is divided into solicitor and barrister.
Solicitors could be considered general practitioners. However, most are experts in a particular area of law.
Barristers might have a wide range of work.

Question 8

Give the facts, arguments and judgment of the Golder v. United Kingdom case.

Answer 8

Facts
Golder: British citizen serving prison sentence. Serious disturbance occurred, Golder happened to be present. A guard was injured, made a statement identifying Golder as one of the assailants. Golder was temporarily put in segregation in prison. No charges were made because the guard wasn’t certain. Golder was worried that the guard’s first statement would negatively affect him. So he contactes the Home Secretary to ask for permission to consult a solicitor to bring a civil action for defamation. This petition was rejected. He then complained to the European Commission of Human Rights. He submitted that the refusal to allow him to consult a solicitor also refused him access to court.

He continued that this went against Article 6 which grants ‘ right of access to the court to obtain the determination of civil rights’. The Commission’s report unanimously agreed that there was a breach of Article 6. The Government disagreed. Commission also found a breach of Articles 8 and 50: Art 8: right to respect for one’s private and family life. Art 50: expenditure of the court.

Question 9

Give the facts, arguments and judgment of the “Airey v. Ireland in: Petzold, H.” case.

Answer 9

Facts:
Mrs Airey’s husband, previously convicted of assaulting her, left their home in 1972 and had not returned to live there. No divorce in Ireland. May be relieved of living together by a deed of separation concluded by the two parties, or by a decree of judicial separation granted only by the High Court. Her husband would not sign a deed of separation, so Mrs Airey had been trying for 7 years to obtain a court decree. Unable to find a solicitor willing to work for her. Legal aid not available for cases of judicial separation, and Mrs Airey cannot afford one herself.

Mrs Airey alleged to the Commission that: Her right to access of court was being denied due to prohibitive legal costs (violation of Article 6). State was not providing her with accessible legal procedure to determine rights created by legislation related to family matters (violation of Article 8). Deprived of an effective remedy before a national authority (violation of Article 13). Judicial separation is more accessible to those who can pay than those who cannot (violation of Article 14). The Commission found: Breach of Article 6. Examination of Articles 14 and 13 was unnecessary. Breach of Article 8.