Chapter 5: Civil Justice System (CJS) Flashcards

Question

What is the intergrity principle? ## Footnote principles of civil justice

Answer 1

Relates to the requirement for an independent & impartial tribunal, & the prohibition of bias 1. For **criminal cases** - Integrity of its proceedings preserves ‘**moral authority**’ of the courts which **justifies** punishment of criminals 2. For **civil cases** - Court requires a similar moral authority to determine **liability** for breach of civil law Integrity also reflects the requirement that **evidence be true and accurate**, so D’s or parties’ rights are protected * Balanced evidence between both parties allow the court to create an **accurate decision**

Answer 2

Court must give each party to a dispute an **equal chance to present** their case & be heard * To **enable/allow a person to give evidence** and respond to questions aimed at elucidating the issues and possibilities of their resolution * This also allows the judge to come to an accurate decision The limitation of legal aid for civil cases was due to the **Legal Aid, Sentencing & Punishment of Offenders Act 2012** (LASPO 2012) 1) Criminal Defence Service stated - * No change proposed, **not proper to restrict legal aid** 2) Changes were made to legal aid for **Civil and Family matters** * Issues placed on a “spectrum of objective importance” 3) Cases where an individuals’ life is at stake, facing intervention by the state in family affairs * Which could **result in their children being removed from their care**

Answer 3

**Airey v Ireland [1979]** * Qualified right, not absolute right **Steel & Morris UK [2005]** * The UK in breach of **Article 6** (right to a fair trial)

Answer 4

1. **Ancillary relief cases** (dispute cases on financial provision upon divorce) where domestic violence is not present 2. **Clinical negligence** 3. **Consumer** & **general contract** cases 4. **Education** 5. **Employment** (other sources can help - trade unions) 6. **Welfare benefits** 7. **Debt matters** where the client’s home is not at risk 8. **Other housing matters** other than repossession, immediate risk of homelessness 9. **Immigration cases** (other than than detention & asylum) 10. **Private law** (children & family cases) where domestic violence is not present

Answer 5

1. Asylum 2. Immigration detention cases 3. Claims against public authorities 4. Allegations of abuse and sexual assault

Answer 6

1. **Objective importance** of the issue 2. **Litigant’s ability** to present their own case 3. Availability of **alternative sources of funding** 4. Availability of **other routes** to resolutions

Answer 7

1. **Fewer people** can access financial support for legal cases 2. **Exceptional case funding** has failed to deliver for those that need it 3. Public education and legal advice are **inadequate** and **disjointed** (incoherent) 4. High court & tribunal fees preventing **people pursuing legal claims** 5. **Bureaucracy** (complex administrative procedures/cases) in the Legal Aid agency is **costly** and **time-consuming** 6. Excessive bureaucracy in the Legal Aid Agency **adversely costing the efficiencies of the legal aid system** in general

Answer 8

**Justice must be seen to be done.** The requirement that a court should give reasons for its decisions & judgment must be pronounced publicly (court must be **transparent** about their decisions) Note * There may be a departure from that principle where that is **necessary in the interests of justice**. Public interest immunity is used when the government believes that disclosure of documents is not in the public interest (**Conway v. Rimmer (1986)**)

Answer 9

* **Flannery v Halifax Estate Agencies Ltd. [2002]** * **Al Rawi v Security Services [2011]**

Answer 10

Facts 1. Appeal against a judge’s decision that he preferred the D’s expert evidence rather than the Claimants 2. Judge **didn’t give reasons** for the preference Held 1. COA allowed his appeal 2. Holding that failure to give reasons breached the principles that the court had to show **fairness to both parties** 3. On grounds that the duty to give reasons is part of **due process**, and its ‘rational’ has two elements 4. Fairness requires that the party that lost knows the reasons, to ensure he is not ‘misdirected’

Answer 11

Held - **Lord Dyson** 1. Open justice is not just a ‘mere procedural rule’ - it is a ‘**fundamental common law principle**’ 2. The principle of open justice is backed up by the rules of **natural justice** 3. Meaning that a party ‘has a right to know the case against him and the evidence on which it is based’

Answer 12

The result of **increased court fees, legal aid cuts, compulsory mediation and other reforms** (Woolf Reforms), which aim to discourage litigation The actual effect is an **inevitable privatisation of forums** such as - 1. **Mediation** - need to hire a mediator/third party to dispute cases 2. **Arbitration** - formal method of a dispute resolution which involves a third party who makes a binding decision 3. **Conciliation** - an alternative dispute resolution to solve matters out of court

Answer 13

ROL is a fundamental doctrine where everyone must **obey to the law**. One of **Lord Bingham’s** ‘essential ingredients for the ROL is a **well-functioning civil justice system** * To allow citizens to assert their substantive civil rights against the state itself, the CJS plays a ‘**truly essential role**’ in furthering the ROL * Meaning citizens are asserting their rights, not allowing the state to exploit their power above the law **Prof Hazel Genn** * Legal rules should **be known and applied in public** (principle of ***open justice***) * In privatising the resolution of civil and family disputes we may be undermining critical rule of law protections

Answer 14

**Prof Hazel Genn** 1) Privatisation will affect the **development** of law * Increasing privatisation will lead to **fewer precedents** and potential **erosion of common law** 2) **High rates** of settlements and diversion of cases to arbitration and mediation are likely to have a particular impact * In commercial law, leading to **loss of guidance** and **‘thinning out’ of the common law**

Answer 15

1) Creation of an **Online Court** (HMOC) for claims up to £25,000, intended to be used by litigants without the need to hire lawyers * This will allow **minimal costs** shifting where representation is used (Online Dispute Resolution) * Allowing litigants to resolve and upload key documents and evidence by themselves 2) Use of ‘**case officers**’ at the conciliation stage - to assist judges with routine work and certain stages in the Online Court * Used to **free up judicial time ** * Case officers will be independent from the government and subject to a system of authorisation, direction, & supervision of the LCJ * Required to have certain level of legal qualification and experience and may be called “Case Lawyers” * Parties will have an unqualified right to have a case officer’s decision reconsidered by a judge 3) **Determination stage** * Where the disputed cases which can’t be settled are detained by a judge * A **face to face trial**, **video** or **telephone hearing** or determination on the documents where it is most appropriate ## Footnote His recommendations for an Online Court were split into 3 stages

Answer 16

1. **Affordable** 2. **Accesible** 3. **Intelligible** 4. Appropriate 5. Fast 6. Consistant 7. **Focused** 8. **Fair** 9. Proportionate

Answer 17

1) May create a **2 tier justice system** * Where the **rich** and big corporations can easily have access to open justice system at trial (physical court) * Where smaller business and **poorer** litigants have access to online courts 2) **Significant/important factual cases can’t properly be dealt with** on paper or via an online court * Judges are able to adequately/properly assess credibility if live evidence is given in person 3) May **increase the justice gap** * If access to internet and technology is **limited** to the poorest and most vulnerable (i.e. the elderly)

Chapter 5: Civil Justice System (CJS) Flashcards

(41 cards)