Module 10 - Access to justice (C10, C17) Flashcards
What does ADR stand for?
Alternative Dispute Resolution
What is ADR?
ADR refers to methods of resolving legal disputes without going to court.
> Includes negotiation, mediation, conciliation, and arbitration
> Often quicker, cheaper, and less formal than litigation.
What is the problem with court proceedings?
- Using courts can be costly in both money and time
- Court can be a traumatic experience and the result may not produce justice
- Proceedings are open to the public and press
> Individuals and businesses are seeking alternate methods more regularly
What happened in the 1990s surrounding ADR?
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)
What did the WOOLF report eventually 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 Act was introduced in 1999 surrounding ADR?
Access to Justice Act 1999
What did the Access to Justice Act 1999 intoduce?
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 are the four main types of ADR?
Negotiation
Mediation
Conciliation
Arbitration
What is negotiation?
Anyone who has a dispute with another person can always attempt to resolve it by negotiating directly with them; this is 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 a main use of negotiation?
Child custody cases.
What are the advantages of negotiation?
- Completely private
- Quickest and cheapest method of ADR
- Solicitors can negotiate on the behalf of clients
What are the disadvantages of negotiation?
- 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 are some mediation services?
Mediation services; growing number
> 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
What is mediation?
Mediation is where a neutral mediator helps the parties reach a compromise; they consult with each party, find common ground, explore each position, and recommend a decision
> A mediator will not usually tell the parties their own views, but can be asked for his opinion
What is one major problem with mediation?
Mediation is not legally binding; can be broken with no repercussions; however, future cases on the same topic can be impacted based on this
What are the many 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 £1,500; court case can be as much as £100,000)
- 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
What are the 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, leading to bias/a poor result)
What is conciliation?
Conciliation is incredibly similar to mediation; a neutral third party helping to resolve disputes
> Instead, the conciliator plays an active role, suggesting grounds for compromise and putting their own substantiated but subject views; suggests possible bases for settlement
What is one major problem with conciliation?
Conciliation is also not legally binding; can be broken with no punishment or enforcement
What are some examples of conciliation?
- Energy Charter Treaty offers a conciliation procedure for transit disputes
- ACAS can support before an industrial tribunal)
What are the many advantages of conciliation?
- Saves a great deal of money (court cases can go up to £100,000)
- Decision can be based on common sense and compromise, not the law
- Allows for future relations
- Helps to narrow down matters; trial will be shortened
- Avoids the winner/loser result of court proceedings
- Parties are more likely to settle
What are the disadvantages of conciliation?
- No guarantee the matter will be resolved, may have to go to court anyway
- Additional costs and delays could occur
What does “Access to Justice” actually mean?
Ensuring that individuals have the ability to resolve legal disputes effectively, whether through courts or alternative methods, regardless of financial or practical barriers.
What is litigation?
The process of resolving disputes through the court system, leading to a formal, legally binding decision. It is often time-consuming and expensive.
What is an example of litigation?
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 £100,000 in damages).
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.
> The arbitrator, not the parties, renders the terms and conditions of the dispute resolution
What are two examples of arbitration?
- An example of arbitration is the Sport of Arbitration (i.e. allowing Jamaican sprinters Powell and Simpson to have doping bans cut)
> Due to the specialisation of the Sport of Arbitration, it is incredibly difficult to have appeals - this is limited recourse - Another example of arbitration is in 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 the 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 the 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 is one problem that arbitration doesn’t have, that conciliation and mediation does have?
An arbitrator settles a dispute with a legally binding decision; this means there will be punishment and consequences if broken.
What background should an arbitrator have?
The arbitrator should have a legal background, and may be specialised
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, and more accessible for resolving these disputes.
> Encourages individuals to bring their own cases and not lawyers; legal funding is not available largely (only for mental health review, protection of children, land, and employment tribunals)
> No formal rules of evidence; both parties given an equal chance
What are some different types of tribunals?
- Social security tribunals;
- Rent tribunals;
- Immigration tribunals;
- Mental health review tribunal
- Employment tribunal
What are some controls within the tribunal system?
Appeals system
Council of Tribunals (reports but has little power)
What is the method of hearing in tribunals?
Method of hearing is informal and private, except in employment tribunals which are more formal like court, and open to the public
How do tribunals usually operate?
Tribunals all operate in different ways as they were set up at different times
> Usually have a panel of three; legally qualified chairman and two laymembers with a particular expertise within the tribunal
When were industrial tribunals introduced, and what did they cover?
Industrial Tribunals - 1964
> Covers all aspect of work related disputes (i.e. dedication of wages, unfair dismissal, redundancy, discrimination)
What are some 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
What are some advantages of tribunals?
- Cost effectiveness (encouraged to represent yourself; rare for costs to occur)
- Speedy hearings
- Simple procedure (flexible, not bound by rules)
- Public funding available for some tribunals
What is the 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, such as cases involving Tyson Fury and Deontay Wilder.
What is legal aid?
Government-funded support for those who cannot afford legal representation or advice.
What are legal aid requirements largely based on?
- Seriousness of the problem
- Merits of the case
What cases are prioritised by legal aid?
- Domestic abuse
- Risk of omelessness
- Criminal proceedings or at a risk of losing liberty
What are the three main difficulties of seeking legal assistance?
- Cost
- Fear
- Lack of knowledge
What is the problem with cost in seeking legal assistance, and what theories apply to this?
- Cost
> Questions over cost and methods of payment
> Solicitors are usually around £80/hour; £300/hr for top firm
> All people can attempt to access lawyers but not everybody can afford it; Marx would argue this is unfair and injustice, while Utilitarianism would agree as everyone can access it.
What is the problem with fear when seeking legal assistance?
- Fear of dealing with lawyers; intimidation (diverse vocabulary may fuel the inferiority of the client; may feel inarticulate)
What happened in 1945 in relation to legal aid?
Rushcliffe Committee, 1945
> Start of government-funded legal aid and advice
> Seen as important as medical services (paired with NHS in 1945)
What development was made in 1949 towards legal aid?
Legal Aid and Advice Act 19490
What was the 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
By 1993, due to inflation, how many could access legal aid?
40%
What is a solicitor?
A legal professional who advises clients, prepares legal documents, and represents them in lower courts or liaises with barristers for higher court cases.
What was the problem with the 1949 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 the problems with the 1949 Legal Aid and Advice Act?
Access to Justice Act 1999
What was the Legal Services Commission (LSC)?
Manages and supervises both schemes and funding; develops local, regional and national plans to match delivery of legal services to identified needs and priorities
What was the Legal Services Commission made up of?
Community Legal Service (CLS) for civil cases
Criminal Defence Service (CDS) for criminal cases.
How was funding for the LSC determined?
Funding is 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)
Who is the LC (Lord Chancellor)?
A senior government official responsible for overseeing the judiciary, legal aid, and court systems in England and Wales.
In civil law, which types of cases take up a priority in legal funding?
- In civil cases, cases concerning those below have a priority;
> Child Protection and the welfare of children
> Proceedings with a loss of life or liberty
> Domestic violence
> Social welfare cases
What types of cases are excluded from civil legal funding, and why?
Allegations of personal injury
Death due to negligence
Damage to property
Conveyancing issues
Boundary disputes
Defamation
Excluded matters as they move into criminal law.
What are the different types of legal services and providers?
- Information providers; libraries and community centres (i.e. leaflets, reference material)
- General help providers; CAB (Citizens Advice Bureau) - advising on action, basic advice and assistance
- Specialist help providers
> 3,600 solicitor firms have contracts with the LSC
> CAB/Law Centres can be given contracts to provide government-funded legal advice (i.e. counteracting advice deserts)
> Trade unions (i.e. RAC and AA; breakdown services) or shelters
What is the CAB (Citizens Advice Bureau)?
A network providing free, impartial advice on legal, financial, and social issues to individuals across the UK.
What are trade unions?
Organisations that represent workers, often providing legal support and advice within their areas of expertise, such as employment or safety.
What is a duty solicitor?
A solicitor available at police stations or magistrates’ courts to provide free legal advice and representation to individuals in custody.
What is the Community Legal Service (CLS), and what does it offer?
- 1,500 staff at 12 offices
- Provides the following services for matters involving civil law;
> General information and the 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 was established in 2013, related to legal aid?
Legal Aid Agency
What is the Legal Aid Agency?
Established under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012)
> 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 disposable income?
Disposable income is gross salary, with deductions of costs
What is disposable capital?
Disposable capital is the assets of the person
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
> Means test once out of custody
> Representation; covers cost of preparing a case and at court
What is the funding criteria in legal aid?
- Disposable income and disposable capital
> Income Support and Job Seekers Allowance automatically qualify - Availability of money in the CLS fund
- Availability of other services like ADR
- Prospect of success; public interest; case success
Give one example of legal help whichc was established in the Access to Justice Act 1999?
Duty solicitor (Access to Justice Act 1999); advice and assistance
> One hour of work
What is the Means Test?
An assessment of an individual’s income and assets to determine eligibility for legal aid based on financial need.
What is the 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.
At what salary would a person automatically qualify for the means test?
- £12,475 p.a or less; automatically qualify for the means test; eligible subject to Interests of Justice test
At what salary would a person automatically disqualify for the means test?
- £22,325 p.a or more; automatically fails the means test; not eligible
At what salary would a person have to have a full means test carried out?
- between £12,475 p.a and £22,325 p.a; full means test carried out
What type of advice agencies are there?
CAB; began in 1938, around 1000 in the country
Trade unions; i.e. RAC and AA (within their specialism)
Law centres; reduced due to lack of funding; offers free advice in catchment area
CDS; duty solicitors, advice and assistance for up to an hour
FRU (Free Representation Unit); run by the Bar since 1992 - barristers represent client with no fee (2000 cases/yr)
ALAS (Law Society); free initial interview; also has an Accident Line (free phone service for accident victims to get in touch with solicitors)
Solicitors; may offer cheap/free initial interviews
What are the 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 civil cases)
What is an advice desert?
An area where access to legal advice is severely limited due to a lack of solicitors or services offering affordable assistance.
What are the 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)
- Lack of lawyers (fees have been cut)
- Budget (has not risen with inflation; less money year-on-year)
What is a conditional fee?
“No win, no fee” agreements allow clients to avoid paying legal fees if they lose their case but often require insurance for other costs.
What are the advantages of conditional fee agreements (CFAs)?
- Have been used in over 50,000 cases for personal injury claims; increased access to justice for many
- Government have considered reform for further justice and ease
What are the disadvantages of conditional fee agreements (CFAs)?
- 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
