ARWA AJABSHAH – LEGAL SYSTEM AND METHODS

DENNING LAW SCHOOL – RECOGNIZED TEACHING CENTRE OF THE UNIVERSITY OF LONDON

CIVIL JUSTICE SYSTEM

GENERAL INTRODUCTION

1. The Civil Justice System (CJS) provides a systematic structure to resolve disputes between private
individuals. It also provides awareness vis-à-vis a person’s legal rights, entitlements and
responsibilities towards the general society. The English public court system has been dealing with
civil disputes since historical times and has a clear structure and defined processes.

2. It would be relevant to mention here that the ability of citizens to make use of the law to protect
their legal rights and hold others to their legal responsibilities underpins the rule of law.
Accordingly, Lord Bingham states that a well functioning CJS is an “essential ingredient” which
upholds the rule of law. In Lord Bingham’s definition a well-functioning CJS through which civil
disputes can be resolved without “excessive cost or delay”.

3. Further, the factors regarded as fundamental to a well-functioning CJS according to the World
Justice Project (WJP) (which ranks the different CJS of the world) are accessibility, affordability,
effectiveness, impartiality and cultural competence.

LEGAL AID

4. The government is responsible to ensure access to justice for its citizens. Broadly, providing access
to justice means to ensure that citizens are: (i) aware of their legal rights and responsibilities; (ii)
aware of procedures through which such rights may be redressed; and (iii) are able to effectively
participate in the legal court system. Hence, to further the aim of providing effective access to
justice for all, the concept of legal aid was introduced in the United Kingdom (UK). Legal aid is
the provision of monetary aid at the expense of the public (i.e through money received from tax
payers) to ensure that every citizen, notwithstanding their financial condition, have equal access to
the CJS. In other words, if a citizen cannot afford the fee connected with court proceedings, the
government will provide the same as legal aid. Provision of legal aid is an effective way of
increasing access to justice which resultantly promotes equality before the law thereby strengthens
the rule of law.

5. The legal aid system in the UK was established through the Legal Aid and Advice Act 1949, and
continued to expand until the mid of 1980s when the legal aid system in the UK had developed into
one of the most comprehensive schemes in the world, covering advice and representation for most
civil and criminal cases in all courts up to the House of Lords/Supreme Court. By the mid-1980s
most of the population could benefit from legal aid and many lawyers in private practice provided
legal aid services. In the 1990s the scheme expanded to include not-for-profit advice agencies.

6. In the 1990s the government budget for legal aid had increased to approximately 2 Billion pounds
and thereafter, there was a shift in policy by the Government who incrementally started to reduce
its legal aid funding. However, the most significant blow to the legal aid system came in 2012 with
the introduction of the Legal Aid, Sentencing and Punishment of Offender Act, 2012 (LASPO)
which substantially cut legal aid funding in major areas specifically in civil and family cases
including many cases that affect the most vulnerable groups in society. This led to a cutting back
of services and the closure of advice centres which were government funded and provided
assistance to people with common, everyday legal problems such as debt, issues with the benefits
system, poor treatment by employers or experiencing family breakdown and related difficulties.
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7. The effects of LASPO are rather uncertain as of yet since it is recently enacted. However, it is
strongly argued that the following outcomes are inevitable: (i) citizens who cannot afford the CJS
will not pursue their legal rights and will either repress themselves which would inevitably result
in health related problems; (ii) some citizens might “take the law in their own hands” which will
lead to increase in crime; and (iii) those who can afford the CJS in terms of the court fee may pursue
their legal rights albeit without any legal representations (i.e. as litigants in person) and will
generally be at an unfair position if the counterparty has legal representation.

8. It would be relevant to mention here that in November 2014 the National Audit Office published a
report ‘Implementing reforms to civil legal aid’ which concluded that the Government was on track
to meet their objective of significantly reducing spending on civil legal aid in a short timeframe.
However, in implementing the reforms, the Government did not think through the impact of the
changes on the wider system and the impact of the reforms on providers of free legal advice.

9. Additionally, the House of Commons Justice Committee (Justice Committee) set up an Inquiry to
assess the broad effect of the changes to civil legal aid introduced by LASPO. The conclusions of
the Justice Committee were critical of LASPO, it was stated that the reforms had achieved its
objective of decreasing costs connected to provision of legal aid but has failed to meet the other
key objectives pursued and therefore the reforms had an overall effect of harming access to justice
(the Government’s four objectives for the reforms were to: (i) discourage unnecessary and
adversarial litigation at public expense; (ii) target legal aid to those who need it most; (iii) make
significant savings in the cost of the scheme (achieved); and (iv) deliver better overall value for
money for the taxpayer).

10. By way of summary the Justice Committees finding were as follows: (i) there was an underspend
in the civil legal aid budget because the Government had not ensured that everyone eligible for
legal aid is able to access it; (ii) LASPO has resulted in many publicly funded legal services
providers to close down; (iii) there has been a substantial increase in litigants in person as a result
of the Government’s reforms; and (iv) a sharp reduction in the use of mediation, despite the
Governments estimates that it would increase.

View of the judiciary on whether provision of legal aid is a prerequisite for providing access to justice:

11. According to the common law, right of effective access to court has been recognized as a
fundamental right as stated by Sir John laws in the case of (Witham) that “the common law has
clearly given special weight to the citizen’s right of access to the courts. It has been described as a
constitutional right”. Further, effective access to justice according to the common law includes
three rights, which were stated by Lord Bingham in the case of R (Daly) v Secretary of State for
the Home Department, which are: (i) right to access to courts; (ii) right to access to legal advice;
and (iii) right to confidentially communicate with legal advisor. In view thereof, the common law
recognizes access to legal aid as a fundamental right and a pre-requiste to equal treatment.

View of the European Court of Human Rights (ECtHR) on whether the provision of legal aid is a
prerequisite for providing access to justice:

12. It would be relevant to note that Article 6 of the Human Rights Act 1998 guarantees the provision
of legal aid in the criminal justice system (as personal liberty is generally at stake) but there is no
such compulsion to provide legal aid in the CJS. Accordingly, the ECtHR was faced with the
question of whether provision of legal aid is a pre-requisite to providing equal access to justice in
civil cases. Accordingly, in the case of (Airey v. Ireland) a claimant claimed unfairness and denial
of access to justice as she did not receive legal aid in the form of legal representation from the state.
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The ECtHR rejected her claim and stated that the purposes of the convention was to guarantee
rights which are “practical and effective, rather than illusionary” , and that legal aid in the CJS is
not a requirement to providing access to justice. Hence, the ECtHR’s view in this regard is that a
state is responsible for providing access to justice to its citizen. However, there are various means
other than provision of legal aid to achieving the same for eg. by simplifying court procedures.

The Governments view on whether the provision of legal aid is a prerequisite for providing access to
justice:

13. The Government accepts that there is a common law right of access to the court. However,
according to them this is not the same as a right to receive legal aid. This is evident from the
Government’s recent statement that “we do not consider that there is any basis at common law
that a litigant is in general entitled to a state subsidy in respect of lawyers’ fees. The legal aid
reforms do not involve any fundamental right of access to the courts, rather the question of whether
a person should receive legal aid funding”. This view is fortified from the reforms of the
Government notably through the enactment of the LASPO.

Conclusion

14. In light of the above, we may safely conclude that the UK Government and the ECtHR have the
same view as regards whether provision of legal aid in the CJS is a pre-requisite to providing access
to justice. It may be argued that the Government’s stance is leaning more towards promoting a
culture of cooperation as opposed to litigation which, in the past, was encouraged due to the their
liberal policies as regards legal aid funding. Further, it would also be relevant to state that public
funds are limited and the Government, whilst having to ensure equal access to justice, also to ensure
development of other sectors of the economy like health, infrastructure and education. Additionally,
there are other methods of ensuring access to justice as stated by the ECtHR and provision of legal
aid is not the only way.

15. Notwithstanding the view the Government, the recent reforms enacted through the LASPO were
generally not well thought out and have harmed access to justice which arguably has weakened the
rule of law.
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DENNING LAW SCHOOL – RECOGNIZED TEACHING CENTRE OF THE UNIVERSITY OF LONDON

CIVIL JUSTICE SYSTEM

CIVIL COURT SYSTEM

1. There is a huge concern of the civil courts in the UK being too expensive, complex and time
consuming. These concerns go back to the 1852 when Charles Dicken in his novel “Bleak House”
shed light on the ineffectiveness of the court system. It has been argued by many that the primary
causes of delay are the adversarial procedures which have resulted in the court system being
inefficient. However, procedures cannot be completely dispensed with as this would lead to
complete chaos. Hence, it is necessary to find a balance between fair procedures and affordable
processing of cases.

2. During the 20th century, Lord Woolf studied the CJS and made his report “Access to Justice” in
1996. In his report he identified that there was an inter relation between complexity delay and costs
and the primary problem was the adversarial behavior of lawyers which made the system more
complex and inaccessible for the general population. Lord Woolf proposed many reforms in his
report which the Government took note of and to confirm Lord Woolfs findings, undertook another
research which confirmed Lord Woolfs finding (this was known as the “Middleton Report”).

3. Accordingly, the Government enacted the Civil Procedure Rules, 1999 (CPR). By way of
summary, the major changes made by the CPR were: (i) the language of legal proceedings was
made easier so citizens could understand it for example “writs” were changed to “forms”,
“plaintiff” were changed to “claimants” , latin terms were replaced with English terms etc; (ii)
Practice Directions and Pre Action Protocols were introduced which contained, in simple language,
the rules and procedures of the CJS which an individual has to follow to apply to the courts and
which also contained details of what the court expects from such individuals; (iii) Overriding
Objectives were introduced which included made judges responsible for dealing with cases justly
and in a cost effective manner and to allocate the court resources on each case according to the
concept of proportionality (i.e by looking at the complexity, public importance and quantum of
money involved in a case); and (iv) Judges were charged with the responsibility of effective case
management which included the early identification of issues, encouraging cooperation, promoting
alternative dispute resolution and preventing unnecessary delays. The CPR also allocated cases in
three separate tracks (according to the quantum of money involved in each case): (i) fast track; (ii)
small track; and (iii) multi track.

Effectiveness of the Woolf Reforms

4. In the 15 years since the implementation of the CPR, evaluations suggest that the reforms have
been partially successful in promoting co-operation and settlement and reducing delay. However,
the critical failure has been with regards to the costs. Only three years after the implementation of
the reforms, the Government’s own evaluation reported anecdotal evidence that costs had increased
following the reforms (Department for Constitutional Affairs, 2002). By 2008 there was so much
concern about rising litigation costs that the then Master of the Rolls, Lord Clarke, commissioned
a thorough review of litigation costs to be conducted by a Court of Appeal judge, Lord Justice
Jackson.

5. Lord Jackson after his review concluded that there was additional work required under the pre
action protocols and increased procedural complexity. He suggested recommendations which were
implemented in April 2013, the results of which are not yet certain. Hence, it may be concluded
that the CPR has not resulted in providing a solution to the plague of inefficiency which has been
inherent in the CJS since the 18th century. This coupled with the Governments conservative polices
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vis-à-vis provision of legal aid has generally resulted in decrease of access to justice and
consequently a dent on the rule of law.
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DENNING LAW SCHOOL – RECOGNIZED TEACHING CENTRE OF THE UNIVERSITY OF LONDON

CIVIL JUSTICE SYSTEM

ALTERNATIVE DISPUTE RESOLUTION (ADR)

1. ADRs are dispute resolution methods other than court proceedings including negotiation,
mediation, conciliation, arbitration, adjudication, early neutral evaluation and ombudsmen
schemes.

Development of Mediation:

2. Lord Woolf highly recommended and favored mediation in his report. He even proposed that the
courts should impose a penalty if mediation is refused. His rationale was that increase in mediation
will arguably lower the burden on the CJS thereby resulting in the CJS operating more efficiently.

3. In the late 1990s and early 2000s, the judiciary started a court attached mediation service to provide
low cost and time limited mediation for litigants who have started court proceedings. Research
findings showed that although the voluntary uptake of mediation was very low (around five per
cent) those people who had volunteered to try mediation to settle their dispute generally liked the
process. About two-thirds of mediations resulted in settlement and there was some evidence that
legal costs had been saved. However, research also showed that where mediation did not result in
settlement, costs and delay were increased.

Common Law view on mediation

4. The common law has a favorable view on mediation which is evident from the case of (Cowl v
Plymouth City Council) where Lord Woolf stated that, as a matter of law, parties are required to
consider ADR before starting legal proceedings, particularly where public money is involved. This
was followed in (Dunnett v Railtrack plc) where the COA held that Railtrack’s refusal to
contemplate mediation prior to the appeal (after it had been suggested by the Court) was sufficient
to deny them their legal costs. The message of Dunnett v Railtrack was reinforced in the later case
of (Hurst v Leeming) where it was held that it is for the judge to decide whether a refusal to mediate
was justified.

5. While judges will accept valid reasons for not wanting to proceed with ADR, such reasons must be
fully justifiable if the party wishes to avoid being penalised by the court. In 2004 the COA gave
guidance to the lower courts in the case of (Halsey v Milton Keynes General NHS Trust), Lord
Justice Dyson held that there should be no presumption in favour of mediation and that there needed
to be a real prospect of mediation succeeding before someone should be denied their legal costs.
The guidance in Halsey was applied in the case of (Burchell v Bullard). Further, a recent High
Court decision in the case of (PGF II SA v OMFS Company) holds that where one party fails to
accept another party’s offer to mediate, and where the court generally believes that such a mediation
would have had a reasonable prospect of success, such conduct by the party must be taken into
account by the court when giving orders in relation to costs.

View of the Government on mediation

6. The Government since the 1990s has been in favor of promoting mediation as this would reduce
their expenditure on the CJS and on provision of legal aid.
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7. The Government has been in favour of moving towards mandatory mediation in which disputing
parties would be required to attempt mediation before they can have access to court services. This
is an approach that has been adopted in other jurisdictions (for example in Australia and Canada).
Despite the fact that the definition of mediation is that of a ‘voluntary, consensual process’, many
mediation providers and judges are in favour of mandatory mediation programmes. However, some
sections of the judiciary, legal practitioners and court users are opposed to compulsion.

Conclusion

8. Although mediation can resolve disputes quickly, at a lower cost (as compared with the cost of
trial) and is also a process which is private and flexible, however, it may magnify power imbalances
between the parties and that weaker parties may be disadvantaged in mediation as compared with
court proceedings as the process itself is unregulated.

9. Having said that, the Government and the judiciary both view mediation in conjunction with the
CJS and see it as a way of increasing access to justice.

10. However, Genn criticizes this and states that mediation does not contribute to: (i) access to the
courts as it is specifically non-court based; and (ii) substantive justice as mediation requires the
parties to relinquish ideas of legal rights and focus, instead, on problem-solving. Genn argues that
the outcome of mediation is not about just settlement it is “just about settlement” where the rights
are not determined strictly in accordance with the law but what the parties can live with.

11. On the other hand, Menkel Meadow argues that some forms of ADR provide greater access to
justice as every person does not want the traditional approach to justice (i.e through the court
system) and hence ADR provides more options, which results in more processes and more variety
of outcomes.
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CIVIL JUSTICE SYSTEM

PRIVATIZATION OF JUSTICE

1. In the past 20 years the phenomena of vanishing trials has been increasingly seen in the courts and
consequently a drop in cases proceeding to trial. Vanishing trial means that parties file a suit but
prior to the actual trial settle the dispute through out of court settlements which generally is through
ADRs. This phenomena may be due to problems in the court system which is leading people
towards considering ADRs. Hence, what can be seen is that the public system (i.e the CJS) has to
compete with the private system (i.e ADRs). The use of ADR has established a privatized industry
supplying justice and such industry is not regulated, nor does it adhere to the legal principles for
example the concept of stare decisis.

2. As stated by Genn, the implications due to privatization of the CJS include: (i) the rule of law being
threatened; (ii) loss of precedent; (iii) unknown consequences of the unregulated processes and the
substantive outcomes through the private dispute resolutions.

3. A contra argument to the above view of Genn is given by Menkal Meadow, who states that “ those
who worry about the privatization of the CJS are litigation romantics she suggests that ‘demise of
the adversary system of trial’ is a ‘continuing evolutionary development of our Anglo-American
legal system.’ She suggests that societies are in a transition similar to the transition from trial by
ordeal to trial by judge and jury.

4. However, it is clear that increasing privatization 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. Finally, widespread settlement means the
compromise of legal rights and the loss of ‘justice’ performed in public. As has been mentioned in
earlier chapters, the requirements of openness, knowledge and accessibility are fundamental
characteristics of the rule of law. Legal rules should be known and applied in public. In privatizing
the resolution of civil and family disputes we may be undermining critical rule of law protections.
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CIVIL JUSTICE SYSTEM

LITIGANTS IN PERSON (LIPS)

1. Under English law there is a right given to every individual to appear in the courts without any
representation. Due to the implementation of LASPO there has been a significant increase in LIPs
as people do not have access to legal aid. Lord Chief Justice, Lord Thomas stated in 2013 that the
growth in the number of LIPs is one of the 10 most significant justice system issues. He said that
the increase was caused by the loss of legal aid and the rise in litigation costs. He said that LIPs
were having a serious impact on courts and that this was a global phenomenon.

2. Insofar as court proceedings are concerned, LIPs have difficulty in understanding the law, in
collecting relevant evidence, in complying with procedural rules and in expressing and advocating
their case in court. In the case of (Re R) Lady Justice Black stated that an additional burden is
placed on the courts when LIPS appear with disorganized documents and without understanding of
issues. This issue is further amplified by the fact that the English court system is adversarial as
opposed to inquisitorial i.e the judge is a spectator and adjudicates on the basis of the evidence and
arguments made by the parties and cannot assist any party to the case.

3. Accordingly, many senior judges have adopted a rather inquisitorial approach when dealing with
LIPS. It was stated in the case of (Mole v. Hunter) that courts have sufficient flexibility to adapt
proceedings so that justice is done for LIPs. In the cases of Re C (A Child) [2013] EWCA Civ
1412, Re W (A Child) [2013] EWCA Civ 1227 and Re D (A Child) [2014] EWCA Civ 315 Lord
Justice Ryder has explained that when dealing with LIPs it is the responsibility of the judge to adopt
an inquisitorial approach so that they can identify the relevant issues in the case.

4. In February 2014 the President of the Family Division, Sir James Munby, said that the current
system is based on the assumption that parties are represented. However, in his view, the system
will have to be ‘radically redesigned to reflect the reality that parties will not be represented.’ In
his lecture in March 2014 the Lord Chief Justice Lord Thomas signalled that the shift to more
inquisitorial processes already taking place within the family justice system might have to be
extended to the other parts of the civil justice system.

5. Further, a number of official reports have made recommendations for how to provide assistance to
the increasing number of LIPs. The Civil Justice Council report in 2011 recommended a holistic
approach focusing on early information and advice, demystification of the law, simplification of
court process, case management by judges and more public legal education for citizens. A Judicial
Working Group on LIPs reported in 2013 and concluded that it was necessary for courts to modify
adversarial procedures and adopt a more ‘inquisitorial’ approach when dealing with LIPs. They
also recommended allowing lay advocates to address the court and to make greater use of what are
known as McKenzie Friends – someone who accompanies a LIP to a court hearing to help by taking
notes, helping to organise the documents and quietly making suggestions about what to do.

6. The National Audit Office, Implementing reforms to civil legal aid, November 2014 on LIPs sets
out the challenges that they face: (i) are less likely to settle cases outside of court hearings; (ii) are
likely to have more court orders and interventions in their cases; (iii) are less likely to have the
knowledge and skills required to conduct their case efficiently; and (iv) create additional work for
judges and court staff.

7. The Civil Justice Council held its Third Forum on LIPS in December 2014. The recommendations
of this forum included a call for coordinated action among voluntary groups to provide early advice
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and assistance. The Government is allocating additional resources to the Personal Support Unit to
provide a higher level of support by volunteers in courts around the country. The Forum
commented: (i) on the need to build a coherent support strategy for LIPs; (ii) that collaboration
between organisations is necessary; (iii) that paralegals and students have an important role to play;
(iv) that some very basic assistance is needed and valued by LIPs – help with completion of forms,
writing letters, etc.; (v) on the need to simplify court procedure; and (vi) on the need for training of
judiciary.

8. The Civil Justice Council held its Fourth Forum on LIPS in December 2015. The Forum
commented on a wide number of issues including: (i) the expansion of the Personal Support
Network; (ii) on the role of digitalisation and online access to justice 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].