The civil justice system, access to justice and ADR

Question 1

Describe the difference in the burden and standard of proof between civil justice and criminal justice

Answer 1

In civil cases the claimant must prove the case on ‘a balance of probabilities’, which means that the evidence proves it is more likely than not that the defendant is liable. In criminal trials the prosecution must prove the case against the defendant ‘beyond reasonable doubt’. The standard of proof is more demanding in criminal cases because of the seriousness of the penalty and because of the stigma involved in a criminal conviction.

Question 2

Who is the decision maker in both civil and in criminal cases ?

Answer 2

The decision maker
In most civil cases decisions will be made by judges or magistrates and only rarely by a jury (actions for defamation or wrongful arrest).

In criminal cases decisions about guilt
will be made by magistrates (summary offences) or by juries (indictable offences) (see
Chapter 7)

Question 3

type of penalty imposed in civil and in criminal cases ?

Answer 3

In a civil case if the defendant is found ‘liable’ (i.e. responsible for the civil wrong) the remedy awarded by the court to a successful claimant may be financial compensation, an injunction or declaration.

In a criminal case, the court gives a ‘verdict’, by which the defendant will be found guilty or not guilty. If guilty, the judge will decide the appropriate penalty, which could be a custodial sentence (time spent in prison), a community sentence, a fine or a discharge.

Question 4

What is the civil justice system for

Answer 4

• Dispute Resolution functions
• Keeping Peace among citizen

“providing peaceful, authoritative and coercive termination of
disputes between citizens, companies and public bodies”

• civil justice system supports social order and facilitates economic activity by providing a legal framework in which business can be done. It also offers citizens the means to enforce the duties of government and to check the exercise of power.

Question 5

manifestation of the rule of law

Answer 5

It has been argued that
the ability of disputing parties to make reasoned arguments in public to an impartial
judge is a manifestation of the rule of law

-

“Where there is no publicity there is no justice. Publicity is the very soul of justice. It is
the keenest spur to exertion, and the surest of all guards against improbity. It keeps the
judge himself, while trying, under trial.”
- legal philosopher Jeremy Bentham

Question 6

trial

Answer 6

trial - the formal hearing of the case by a judge in court

Question 7

litigation

and

litigants

Answer 7

The process of dealing with a civil dispute through the civil courts is referred to as ‘litigation’ and the parties involved in the litigation are referred to as ‘litigants’

Question 8

‘issue of proceedings’

Answer 8

The formal beginning of a civil court case is the ‘issue of proceedings’ in which
the person bringing the claim (the claimant) sets out their case and what it is they
are claiming from the court, generally monetary compensation. This is sent to the
person against whom the claim is being brought (the defendant) who must respond
with their ‘defence’ (i.e. saying why they do not believe that they are liable to pay
compensation).

Question 9

According to the WJP, the factors regarded as fundamental to a well-functioning civil justice system are that:

Answer 9

• People can access and afford civil justice;
• Civil justice is free of discrimination;
• Civil justice is free of corruption;
• Civil justice is free of improper government influence;
• Civil justice is not subject to unreasonable delay;
• Civil justice is effectively enforced;
• Alternative dispute resolution mechanisms are accessible, impartial and effective.

Question 10

Effective access to justice requires:

Answer 10

• awareness of rights, entitlements, obligations and responsibilities
• awareness of the procedures that are available for the resolution of disputes about legal rights, entitlements and responsibilities
• ability to access redress systems and participate effectively in the process so that the legal merits of cases are properly presented and understood by the decision maker.

Question 11

Conclusions of the Justice Committee on LASPO

Answer 11

The Committee’s overall conclusion was that, while it had made significant savings in
the cost of the scheme, the Ministry had harmed access to justice for some litigants and
had not achieved the other three out of four of its stated objectives for the reforms.
The Ministry had failed to anticipate the impact of the reforms because it did not carry
out sufficient research before implementing the reforms. The Committee’s conclusions
were as follows.

Question 12

Effects of the LASPO

Answer 12

u Since the reforms came into effect there has been an underspend in the civil legal
aid budget because the Ministry has not ensured that everyone eligible for legal aid
is able to access it.
u LASPO has had a harmful effect on the legal aid market and providers of publiclyfunded legal services, leading to the cutting and significant downsizing of
departments and centres dealing with such work. There are now concerns about
the sustainability of legal aid practice in future.
u There has been a substantial increase in litigants in person as a result of the
Government’s reforms. Litigants in person are increasingly people with no choice
other than to represent themselves and who may therefore have some difficulty in
effectively presenting their cases. The result is that the courts are having to expend
more resources to assist litigants in person and require more funding to cope, and
the Ministry is having to fund more direct assistance for litigants in person.
u Also indicative of the lack of evidence on the effects of the reforms has been the
sharp reduction in the use of mediation, despite the Ministry’s estimates that it
would increase. The Committee found that this was because the Ministry did not
appreciate what makes people seek mediation.

Question 13

The Public Accounts Committee’s conclusions were that:

Answer 13

u The Ministry of Justice did not have robust evidence for the changes made. It still
has little understanding of why people go to court and how and why people access
legal aid.
u The Ministry’s approach to implementing the reforms has inhibited access to
mediation for family law cases. Mediations in family law cases fell by 38 per cent in
the year after the reforms as the Ministry did not understand that removing legal
aid would mean that this would reduce the referrals by solicitors to mediation.
u The Ministry does not know whether people who are eligible for legal aid are able
to get it.
u The complexity of the justice system may be preventing people who are no longer
eligible for legal aid from securing access to justice. The system is complex and
many people will not be able to represent themselves in court.
u The Ministry cannot manage the impact of the increase in litigants in person,
because it still does not understand the impact that they have on the courts
service. Litigants in person may be placing additional pressure on the courts.
u The quality of face-to-face legal aid is unacceptably low, and the Legal Aid Agency
does not understand the link between the price it pays providers and the quality of
the advice.
u The Ministry does not know whether the reduction in spending on civil legal aid is
outweighed by additional costs in other parts of the public sector as a result of the
reforms. The cuts made to legal aid may simply have been shifted to other areas of
the public sector.

Question 14

The Law Society?

Answer 14

The law society is the professional body for solicitors

Question 15

The Law Society’s main findings on LASPO ?

Answer 15

The Law Society’s main findings
were that:
u legal aid is no longer available for many of those who need it
u those eligible for legal aid find it hard to access

u wide gaps in provision are not being addressed

u LASPO has had a wider and detrimental impact on the state and society.

Question 16

Lord Woolf’s reforms

Answer 16

Lord Woolf’s solution was to
shift responsibility for the management of civil cases from the parties to the court
and to allocate cases to procedural ‘tracks’ so that simple cases would be dealt with
by swift and straightforward procedures, and more complex procedures would be
reserved for the most legally difficult or most expensive cases. This was the concept
of proportionality which characterised Lord Woolf’s reforms. Another important
objective of Lord Woolf’s reforms was to promote early settlement of cases. He argued
that disputing parties should only use the courts as a last resort and should use private
ADR processes, in particular mediation, to settle disputes at the earliest opportunity

Question 17

Civil Procedure Rules (CPR)

Answer 17

Dealing with a case justly and at
proportionate cost includes saving expense and dealing with the case in ways that
are proportionate to the amount of money involved, the importance of the case, the
complexity of the issues and the financial position of each party.

Under the CPR judges are responsible for actively managing cases. This involves
encouraging co-operation, identifying key issues that need to be investigated,
encouraging disputing parties to use ADR and helping the parties to settle. There is an
emphasis on efficiency and settlement.
The three procedural tracks for cases are:
1. The small claims track (CPR Part 27) – for cases with a claim value not exceeding
£10,000 (£1,000 for personal injury and housing cases). This is the most informal
procedure designed to be speedy and inexpensive. Under the CPR the court may
adopt any method of proceeding at a hearing that it considers to be fair. Strict rules
of evidence do not apply and the court can limit cross-examination. Despite the
informality the court must give reasons for its decision.
2. The fast track (CPR Part 28) – for cases with a claim value of £10,000 to £25,000.
Fast track cases have a strict timetable. The trial lasts for no longer than one day
and oral expert evidence is limited.
3. The multi-track (CPR Part 29) – for all other cases. These are the most complex and
high value cases. They are subject to active case management and pre-trial review
by the court

Question 18

pro se litigation

Answer 18

Self-representation in court

Question 19

Disadvantages of LIPs
‘Litigant in Person’ (LiP)

Answer 19

[LIPs] will not have had the benefit of legal advice to identify the merits and demerits
of their proposals … they will not have had identified to them the issues the court can
address before arrival at the court door … they will arrive without professionally advised
applications seeking permission to file evidence … Many will have no idea what a
conventional court process entails and some will have difficulty in understanding its rules.

Question 20

challenges that LIPs face

(according to National Audit Office)

Answer 20

• are less likely to settle cases outside of court hearings
• are likely to have more court orders and interventions in their cases
• are less likely to have the knowledge and skills required to conduct their cases efficiently
• create additional work for judges and court staff, which can make court-listing processes less efficient.

Question 21

Civil Justice Council’s Third Forum on Litigants Report Recommendation

Answer 21

u the need to build a coherent support strategy for LIPs
u the need for collaboration between organisations
u the important role that paralegals and students have to play
u how LIPs need and value some very basic assistance – help with completion of
forms, writing letters, and so on
u the need to simplify court procedure
u the need for training of the judiciary
u the role of digitalisation and online access to justice
u the issue of ‘unbundling’, whereby solicitors only have a narrow duty of care to
advise on limited aspects of a given case (as discussed in Sharon Minkin v Lesley
Landsberg (trading as Barnet Family Law) [2015] EWCA Civ 1152)

Question 22

adversial and inquisitorial court procedures

Answer 22

The inquisitorial process grants more power to the judge who oversees the process, whereas the judge in the adversarial system serves more as an arbiter between claims of the prosecution and defence.

Common law judges in general are more adversial whereas civil law judges are more inquistorial.

Question 23

July 2016, Lord Justice Briggs published his final report into the review of the
structure of civil courts.

Answer 23

u To carry out a review of the structure by which the Civil Courts (namely the County
Court, the High Court and the Court of Appeal) provide the State’s service for the
resolution of civil disputes in England and Wales.
u To review the boundaries between the Civil Courts and: (i) the Family Court; (ii)
the Tribunals Service; and (iii) other private providers of civil dispute resolution
services, but not the internal structures of those other entities.
u To make recommendations for structural change including, in particular, the
structures by which the fruits of the Reform Programme may best be integrated
into the present structure of the Civil Courts.
u To make recommendations for the deployment of judges and delegated judicial
officers to particular classes of case.

Question 24

The aims of the reforms were that the justice system should be:

Answer 24

The aims of the reforms were that the justice system should be:
u Just: decisions and outcomes are fair, the judiciary are supported by processes that
are modern, transparent and consistent, and like cases are treated alike. A strong
judiciary and meritocratic legal professions draw on the widest available pool of
talents, to maintain public confidence and strengthen the rule of law.
u Proportionate: the cost, speed, complexity, and degree of adversarial protection
make sense and are appropriate to the nature and value of the dispute at issue. An
effective system will save people time and money, and shrink the impact of legal
proceedings on their lives.
u Accessible: the system is affordable, intelligible and available for use by all,
convenient for those who cannot easily attend in person, and supportive of those
not comfortable with the law or technology.

Question 25

Types of ADR (Alternative Dispute Resolution) available ?

Answer 25

• Arbitration (Binding)
• Early Neutral Evaluation (Non Binding)
• Expert Determination (Binding)
• Mediation (Non Binding, more passive)
• Concilliation (Non Binding, more active)
• Med-Arb (Mix between Mediation and Arbitration, if Parties dont reach agreement in Mediation switches to Arbitration)
• Ombudsmen

Question 26

pro bono

Answer 26

denoting work undertaken without charge, especially legal work for a client on low income.

Question 27

Ultra vires

Answer 27

Ultra vires is a Latin phrase meaning “beyond the powers”. An act which requires legal authority but is done without it is characterised in law as ultra vires. Its opposite, an act done under proper authority, is intra vires (“within the powers”). Acts that are intra vires may equivalently be termed “valid” and those that are ultra vires “invalid”.

Question 28

Mandatory Information Assessment Meeting (MIAM)

Answer 28

for separation and divorce cases:
If you are in dispute with your ex, or are having difficulties settling your separation, you may be thinking about court proceedings. But before an application can be made to court, you are required to attend a Mediation Information Assessment Meeting, or ‘MIAM’ for short.

Question 29

Compulsion

Answer 29

Zwang zur Handlung

Question 30

ODR - Online Dispute Resolution

Answer 30

One of the main recommendations of the Civil
Courts Structure Review by Lord Justice Briggs was the introduction of an Online Court, and
this was taken up in the summary of reforms in ‘Transforming our justice system’

Question 31

Adjudication

Answer 31

Adjudication

Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved.

Question 32

Whats the problem with increasing privatisation ?

Answer 32

increasing privatisation will lead to fewer precedents and the
potential erosion of the common law. High rates of settlement and diversion of cases
to arbitration and mediation are likely to have a particular impact; for example, in
commercial law, leading to a loss of guidance and ‘thinning out’ of the common law.

Question 33

Judicial Committee of the Privy Council

Answer 33

Highest Appeal Body in the UK.