Elements of effective legal system - civil Flashcards
Fair and unbiased hearing
A party who feels that they have had their rights infringed or that they have been wronged by another party should be able to resolve their civil claim in a fair and unbiased hearing or trial. Each party should have an equal opportunity to persuade the court that, on the balance of probabilities, their version of the facts is the truth.
Effective Access
Parties who are in dispute must be given effective means by which their dispute can be resolved. Otherwise, the legal system runs the risk of people taking the law into their own hands when settling civil disputes, or not being able to pursue or defend a dispute at all. The legal system provides a range of dispute resolution mechanisms, although a party’s access to them can vary depending on the costs and complexity of the case.
Timely resolution
The timely resolution of civil disputes is important, as delays in legal processes and procedures can limit the effective operation of the legal system. Both parties to a civil dispute could be severely disadvantaged if it takes a long time to resolve. The longer it takes to settle a case the higher the stress of worrying about the outcome of a case, and the undue hardship while waiting for financial settlement
How pleadings contribute to fair and unbiased
This stage enables the parties to become aware of the claims, defences and counterclaims that are being made in the proceeding to afford them natural justice and procedural fairness. It ensures that the parties are prepared for the case and the trial proceeds on the basis that the parties have made all the possible claims they can in their pleadings.
How directions hearings contribute to fair and unbiased
Having both parties present at directions hearings ensures a proper opportunity to make any submissions, applications or arguments to the judge (or associate judge) about what orders should be made or the timetable that should be set down for pre-trial procedures. This allows the case to proceed fairly and ensure that all parties have the opportunity to be heard.
How discovery contribute to fair and unbiased
This is designed to ensure that all parties have access to information and documents that are relevant for the trial. Particularly during discovery stage, the parties become aware of the evidence of each party’s evidence, which reduces the element of surprise at trial. This assists in both parties being on an equal footing with respect to knowledge of documents at the trial.
How pleadings hinder fair and unbiased
Often the pleadings are so complex that they disadvantage a party who does not have legal representation. Pleadings normally require the expertise and knowledge of a solicitor and/or barrister. This can disadvantage an unrepresented litigant who may not understand what pleadings are and therefore does not begin on the same footing as their opponent.
How discovery hinders fair and unbiased
Again, although designed to clarify issues in dispute, avoid surprises at trial and allow parties to understand the claims and evidence involved, the discovery process can often be long and complex and require legal representation. This can disadvantage people who represent themselves.
How discovery hinders fair and unbiased
A party with more experienced legal representation may argue their case better at a directions hearing and thus may be better placed to obtain the orders they require in the case.
How damages hinder fair and unbiased
If a jury is required to decide on the amount of damages, the amount can be different from that awarded (by other juries) in other similar cases and can often be very large, which can be unfair to the defendant.
How pre trial contributes to effective access
A party will have access to pre-trial procedures that may assist them in resolving their case which they would otherwise not have access to if they did not issue proceedings. For example, a party will have access to court-ordered mediation, documents discovered by the other side and the ability to order interrogatories to help assist them with their claim. These procedures may result in an early out-of-court settlement, or help define the issues in dispute.
How pre trial hinders effective access
Pre-trial procedures are often complex and difficult to understand, and usually require the assistance and expertise of solicitors. This poses problems for unrepresented litigants, who find it difficult to easily use the court system to resolve their disputes. Other procedures such as directions hearings, mediation and trials also add to the complexity of the court system.
How pleadings and discovery contributes to timely resolution
Pleadings and discovery provide both sides to a case with the opportunity to find out details of the case being brought against them. This could result in one party deciding not to pursue their case and could encourage an out-of-court settlement that satisfies both parties.
How directions hearings contribute to fair and unbiased
Try to speed up the process of getting a matter to trial and to make the trial shorter by clarifying issues before the trial, so that these do not need to be contested in the trial. Directions hearings also help the parties to become better acquainted with the strengths of each party’s case, and as a result can lead to the parties deciding to settle out of court rather than go to trial. Some issues can be settled during directions hearings, and aspects of the plaintiff’s case may be admitted before attending court, which can result in the trial being shorter as these issues do not then need to be settled at trial.
