Shifts in Civil Justice Flashcards
what does Sir J. Jacob argue the function of the civil justice system is?
‘responds to the social need to give full and effective value to the substantive rights of members of society’
what is the function of civil law?
defines rights, obligations and remedies of citizens
covers a range of disputes
ex// commercial, faulty goods, police actions
what stats does Hazel Genn use to highlight the reduced effectiveness of civil trials (2011)?
16% got a trial
43% got no resolution
what was Lord Woolf’s ‘Access to Justice’ report?
what did he mainly find?
1995/6 report on the ineffectiveness of the civil court proceedings
criticised the ‘uncontrolled nature of the litigation process’
commented on the cost, delays and complexity
‘failing most conspicuously to meet the needs of litigants’
use of the trial to make profits, keep going until the other pulls out
how did Lord Woolf describe the litigation system in his 1995/6 reports?
‘a battleground where no rules apply’
what did Lord Woolf argue would be the result of imposing his reforms, with less use of the trial in civil proceedings?
‘total change in philosophy will mean that litigants must accept that… they no longer have sole and unfettered control over the way they take their case forward’
what does Lord Woolf argue would be the new role of the judge in civil law disputes?
what does this entail?
an ‘active case manager’
encourage co-operation
use alternative dispute resolution
help parties to settle
what did Lord Briggs report on the civil court structure in 2015/6 recommend?
online launching of cases to save money
case management by case officers
hearing by a judge only when absolutely necessary
what does Simon Roberts argue the effect of civil justice reforms is?
reconceptualise courts from an authoritative decision-maker to sponsors of a negotiated settlement
what is mediation?
voluntary, confidential and private process assisted by a neutral 3rd party
sits between adjudication and negotiation
how is the voluntary notion of mediation somewhat compromised?
if you do not take the recommendations then the judge can prevent/award costs
what are the forms of mediation?
mediator facilitates the process of the 2 parties reaching an agreement
mediator listens, proposes a solution and tries to persuade the parties to take it
why is mediation beneficial?
less antagonistic
more responsive to the parties’ needs
ensures maintenance of relationships
more creative, less restrictive settlement
can be less costly and more efficient
how is the process of mediated limited?
cannot advance policy
cannot advance lawyers’ advocacy skills
doesn’t facilitate development of the law
how does Hazel Genn argue Lord Woolf’s reforms should actually be interpreted as?
not driving all civil cases away from the courts
instead, ‘asking what cases should be facilitated into court and how they should be facilitated’
how does Mulcahy argue civil law reforms create a conflict of interests?
conflict between private interest in cost-effective dispute settlement and public interest in clarifying the law and upholding rights
when were their sufficient cuts in justice?
2011-16
40% cut
when did legal aid obtain statutory footing?
1949 Legal Advice and Legal Aid Act
what removed most areas of civil justice from the scope of available legal aid?
Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012
how does former Justice Minister, Djangoly, justify civil justice reforms?
‘courts shouldn’t be used as arenas for conflict’
‘when a more mature and considered discussion of the issues at hand… could see a better outcome for them’
what was the public reaction to LASPO?
legal strike action
protests inc lawyers
what did Lord Neuberger argue the effect of more mediation and less trials is?
‘antithetic to our commitment to equal access to justice, to out commitment to a government of law’
where have commentaries on the reforms failing to provide justice been written?
Amnesty International - ‘Cuts That Hurt’ 2016
Bach Commission - ‘The Right to Justice’ 2017
Law Society - ‘Access Denied?’ 2017
what are the main recommendations to tackle the failures of the reforms?
increase availability of legal advice
transform legal education
technological innovation
‘minimum standards for access to justice’ in line with HRA
repeal LASPO
