NALP Level 3 PTech Cert Workbook V2 (PDF)

NALP LEVEL 3 CERTIFICATE FOR PARALEGAL TECHNICIANS UNIT 1 INTRODUCTION...

NALP LEVEL 3 CERTIFICATE FOR PARALEGAL TECHNICIANS UNIT 1 INTRODUCTION TO LAW FOR PARALEGALS Office 1, 1st Floor Dragon Bridge House, 253/259 Whitehall Road, Leeds, LS12 6ER [email protected] 0207 112 8034 NALP Level 3 Cert – U1 Intro to Law Copyright © NALP 2023  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 NALP Level 3 Certificate for Paralegal Technicians Regulated Qualification Details: Full Regulated Qualification Title Qualification Ref No. NALP Level 3 Certificate for Paralegal Technicians 610/3492/7 Unit Details: Unit Title GLH SSA TQT 1 Introduction to Law for Paralegals 62 41 103 2 Professional Conduct for Paralegals 40 26 66 3 Introduction to Law of Contract 64 43 107 4 Introduction to Litigation and Dispute Resolution 55 37 92 Key: GLH = Guided Learning Hours SSA = Self Study and Assessment TQT = Total Qualification Time Note: This qualification has no optional units of study. In order to attain this qualification, a learner must study and successfully complete the assessments for all of the above Units, unless Recognition of Prior Learning has been requested and granted. Recognition of Prior Learning Recognition of Prior Learning (RPL) is allowed in line with the NALP Recognition of Prior Learning Policy. There is a maximum allowance for RPL of 33% of any NALP qualification, rounded down to the nearest number of whole units. That means that, for the NALP Level 3 Certificate for Paralegal Technicians, the maximum amount of RPL that could be granted would cover a single Unit of study. Please see the full NALP Recognition of Prior Learning Policy, available on our website at https://www.nationalparalegals.co.uk/ for full details of how to apply for RPL. NALP Level 3 Cert – U1 Intro to Law Page 2 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Glossary of Frequently Used Words and Phrases: Word or Phrase Explanation Where the learner is having some direct instruction from a teacher or tutor, often carried via online teaching sessions or webinars, coupled Blended Learning with self-study either online or from a PDF or paper-based copy of this workbook Where the learner is mostly studying independently from any tutor or Distance Learning teacher and only having ad hoc direct teaching sessions, often on demand rather than pre-arranged. Average number of hours of study under the direction of a teacher or tutor in a face-to-face setting (in class or online) to complete the unit. Guided Learning Hours This may be more or less, depending on whether you are studying in a traditional classroom-based environment, blended learning or distance learning. The National Association of Licensed Paralegals. The oldest established professional membership body for paralegals in the UK which acts as a voluntary regulator for its members. It is also an NALP Awarding Organisation recognised by Ofqual, offering paralegal specific regulated qualifications, as well being an End Point Assessment Organisation for the Level 3 Paralegal Apprenticeship. A legal professional who is involved in the preparation of legal documents, research, interviewing clients and witnesses and handling Paralegal a case load. They are often referred to as ‘paralegal lawyers’. Paralegals can do almost everything a solicitor can with the exception of the Reserved Activities. Presenting someone’s else’s work or ideas as your own, whether with their consent or not, by incorporating it into your own work without full acknowledgement or proper citation. All published and unpublished material, whether in manuscript, printed or electronic Plagiarism form, is covered by this definition. Plagiarism may be intentional, reckless or unintentional and it is always taken seriously. Learners engaging in plagiarism risk having the assessment disqualified and even being disqualified from the qualification as a whole. The six legal activities listed in Section 12 of the Legal Services Act 2007 which can only be undertaken by those authorised to do so under that Act (e.g. solicitors, barristers, Legal Executives, etc.). These activities are: Exercising the right of audience in court (unless granted by a court Reserved Activities for specific proceedings) Conducting litigation (unless granted by a court for specific proceedings) Reserved instruments activities (e.g. conveyancing) Probate activities Notarial activities NALP Level 3 Cert – U1 Intro to Law Page 3 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 The administration of oaths Average number of hours of study a learner may expect to undertake independently – i.e. outside of their guided learning hours – in order Self-Study to complete the unit. This may be more or less, depending on whether you are studying in a traditional classroom-based environment, blended learning or distance learning. The average number of hours of study a learner may require in order Total Qualification Time to complete the unit, including the time required to complete the relevant assessment(s) for that unit. NALP Level 3 Cert – U1 Intro to Law Page 4 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Contents Chapter 1 - The Nature and Classification of Law.....................................................................................9 What is Law?.......................................................................................................................................................9 Jurisprudence....................................................................................................................................................10 Law v Morality...................................................................................................................................................10 Law v Private Club Rules...............................................................................................................................11 Law v Justice.....................................................................................................................................................11 The Classification of Law..............................................................................................................................12 Public International Law...........................................................................................................................12 Municipal Law...............................................................................................................................................12 Criminal Law......................................................................................................................................................13 Civil Law..........................................................................................................................................................13 Procedural Law.............................................................................................................................................13 Criminal and Civil Law....................................................................................................................................14 Criminal Law..................................................................................................................................................14 Civil Law..........................................................................................................................................................14 Burden of proof.................................................................................................................................................15 Standard of proof.........................................................................................................................................15 Prosecution Bodies..........................................................................................................................................16 Legal personality..............................................................................................................................................17 Natural person..............................................................................................................................................17 Artificial person............................................................................................................................................18 Chapter 2 - The Origins of Law.......................................................................................................................19 Origins..................................................................................................................................................................19 1066..................................................................................................................................................................19 Common Law.....................................................................................................................................................19 Advantages of Common Law...................................................................................................................20 Disadvantages of Common Law.............................................................................................................20 Equity...................................................................................................................................................................20 Advantages of Equity..................................................................................................................................20 Disadvantages of Equity............................................................................................................................21 Earl of Oxford’s Case (1615)....................................................................................................................21 Judicature Acts 1872 – 1875.......................................................................................................................21 Mortgages and Trusts.....................................................................................................................................22 Mortgages.......................................................................................................................................................22 NALP Level 3 Cert – U1 Intro to Law Page 5 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Trusts................................................................................................................................................................23 Equitable remedies..........................................................................................................................................23 Leaf v International Galleries (1950)...................................................................................................24 Equitable Maxims.............................................................................................................................................25 Common Law, Equity and Statutes...........................................................................................................26 Chapter 3 - The Legal Profession...................................................................................................................27 Barristers............................................................................................................................................................27 Qualifying as a barrister............................................................................................................................27 The work of barristers................................................................................................................................28 King’s Counsel...............................................................................................................................................29 Employed barristers....................................................................................................................................29 The Code of Conduct...................................................................................................................................29 Continuing Professional Development (CPD)....................................................................................30 Solicitors.............................................................................................................................................................30 Qualifying as a solicitor.............................................................................................................................31 The work of a solicitor................................................................................................................................31 The Solicitors’ Regulation Authority.....................................................................................................32 SRA Standards and Regulations 2019..................................................................................................33 CPD....................................................................................................................................................................33 Rights of audience...........................................................................................................................................34 Rights of audience for barristers...........................................................................................................34 Rights of audience for solicitors.............................................................................................................34 Higher Courts Advocacy Qualification..................................................................................................34 Paralegals...........................................................................................................................................................35 National Association of Licensed Paralegals.....................................................................................35 The work of paralegals..............................................................................................................................35 Reserved activities......................................................................................................................................36 Qualifying as a Paralegal...........................................................................................................................36 Other legal support staff...............................................................................................................................37 Legal Executives...........................................................................................................................................37 Licensed Conveyancers..............................................................................................................................38 The Legal Ombudsman..................................................................................................................................38 Chapter 4 – Decision Makers in Court..........................................................................................................39 Not legally qualified........................................................................................................................................39 Lay Magistrates................................................................................................................................................39 NALP Level 3 Cert – U1 Intro to Law Page 6 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Qualities..........................................................................................................................................................39 Appointment..................................................................................................................................................40 The work of lay magistrates....................................................................................................................40 Advantages of lay magistrates................................................................................................................41 Disadvantages of lay magistrates..........................................................................................................41 Jurors....................................................................................................................................................................42 Selection..........................................................................................................................................................42 Secrecy.............................................................................................................................................................43 The advantages of juries...........................................................................................................................43 The disadvantages of juries.....................................................................................................................43 Legally qualified...............................................................................................................................................44 Judges..................................................................................................................................................................44 Chapter 5 – Creation of Law by Statute......................................................................................................49 UK State Powers...............................................................................................................................................49 Types of Bills......................................................................................................................................................52 Delegated legislation......................................................................................................................................55 Chapter 6 – Case Law.........................................................................................................................................60 Binding precedent............................................................................................................................................60 European Courts...............................................................................................................................................62 Binding parts of a judgement......................................................................................................................63 Donoghue v Stevenson (1932)...............................................................................................................64 Chapter 7 – The Courts in England and Wales..........................................................................................66 Civil courts..........................................................................................................................................................66 Criminal Courts.................................................................................................................................................69 Chapter 8 – Legal Research.............................................................................................................................78 Why legal research is important................................................................................................................78 Donoghue v Stevenson (1932)...............................................................................................................85 NALP’s rules.......................................................................................................................................................92 Appendix 1 - Check Your Understanding – Model Answers.................................................................95 NALP Level 3 Cert – U1 Intro to Law Page 7 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Welcome to the course. This is one of 4 mandatory Units for you to study in order to gain the NALP Level 3 Certificate for Paralegal Technicians. Throughout the course book you will find helpful information and questions to enable you to test your knowledge and understanding. Each chapter covers one of the learning outcomes for the course, making it easy for you to relate the subject matter to the learning aims of this Unit. The learning outcomes are identified in each chapter of this workbook. The Learning Outcomes for Unit 1 are: Learning Outcome 1: Have an understanding of the legal system in England and Wales. Learning Outcome 2: Have an understanding of how law is made. Learning Outcome 3: Have an understanding of how and where to research law. For more information on the learning outcomes and assessment criteria for the NALP Level 3 Certificate for Paralegal Technicians, please see the Qualification Specification which can be provided to you by your college or training centre or downloaded from our website at https://www.nationalparalegals.co.uk/. NALP Level 3 Cert – U1 Intro to Law Page 8 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Learning Chapter 1 - The Nature and Classification of Law Outcome 1 What is Law? Welcome to your first step in the study of Law. It is a fascinating subject and one which we hope you will SOCIETY CANNOT continue to study and enjoy for years to come. This Unit EXIST WITHOUT LAW. will form the building blocks for the rest of your studies, as LAW IS THE BOND OF amongst other things, we will be considering: SOCIETY: THAT WHICH MAKES IT, THAT The sources of law WHICH PRESERVES IT The legal profession AND KEEPS IT TOGETHER The structure of our courts Joseph P Bradley However, before we go any further, we need to consider what law is. The Oxford Dictionary of Law defines it as: ‘ The enforceable body of rules that govern any society. ’ But what does this mean? It means that the law is a system of rules both set and enforced by local or national government, meaning that it is widely applicable. For example, some parents do not allow their children to use mobile phones whilst doing their homework. That may well be a rule that is enforced within the family, but it is clearly not a law as it is neither set nor enforced by the local or national government. In comparison, law covers a wide range of behaviours, from ones we are all familiar with such as marriage and buying property, to ones we want to avoid, like theft and violence. Law covers everything from someone shoplifting a tin of baked beans to celebrity divorces. In fact, every time you: Ride a bicycle Start a new job Have children your rights and responsibilities are affected by law. This is why the law is often described as “pervasive” (which also means widespread) because its affects every area of life. As a result, the study of law is both interesting and important. NALP Level 3 Cert – U1 Intro to Law Page 9 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 However, as there are different governments in place across the world, what is legal and illegal will vary between countries. It is, for example, illegal to sell chewing gum in Singapore but not, obviously, in the UK. The law you will study in this course is that of England and Wales. The laws in other parts of the United Kingdom are different because of their different political histories. Jurisprudence So, having seen that law is a system of rules which varies according to your country, you might ask why we have this system? IT IS TRUE THAT To answer this question, we will turn to something LEGALITY IS NOT known as ‘jurisprudence’. This is the study of the MORALITY AND STICKING nature of law and its role in society. It is also TO THE LAW IS commonly known as ‘legal theory.’ One of the NECESSARY FOR GOOD matters jurisprudence considers is the purpose of CITIZENSHIP, BUT IT IS law - that is, why it exists. NOT SUFFICIENT. The theory is that laws protect our essential rights Julian Baggini and freedoms by ensuring that everyone respects them. In a democracy the law: Establishes standards of behaviour that all citizens are held to. Law sets out clear rules affecting everyone. Whatever our age, background, religion, gender or wealth we are all bound by them. Maintains order. The criminal justice system must punish the guilty, protect our liberties and rehabilitate offenders. Resolves disputes. Law ensures that there is fairness both in business and for individuals. For example, businesses, whether large or small, can rely on laws for the enforcement of debts and as individuals we can use laws to ensure that we are treated fairly at work. The protection of society. Law protects us from both other individuals and the State. So, if you sign a legal contract, law will ensure that it is fulfilled and if you are arrested without cause, law will ensure that you are set free. Although it may not always achieve these goals in practice, the law sets the benchmark in these areas. It is therefore fundamental both to the individual, and to society as a whole. Law v Morality The fact that the law is set by the government and passed by parliament makes it distinct from other rules and having seen how it is different to the rules within a family, we are now going to consider the difference between law and morality. NALP Level 3 Cert – U1 Intro to Law Page 10 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Morality is the belief that some behaviour is right and acceptable, and that other behaviour is wrong. Initially, this may sound similar to law, but you will notice that, for example, it is illegal to park on a double yellow line, yet few people would class it as immoral. Equally, it is not illegal to cheat on your partner, yet many would consider it morally wrong to do so. An example of where law and morality do overlap is that you should not steal as most people would regard this as immoral, but it is also made illegal by the Theft Act (law.) So, you can see that whilst morality and the law may overlap in some cases, they are not the same. Law v Private Club Rules The law is also not the same as the rules of a private group, like a club. For example, there are still a number of private clubs which bar women from becoming members. They are allowed to do so because they serve ‘members only’, not the general public. You may think this is both odd and antiquated, but it demonstrates that private rules are different to legal rules. Equally, if a child breaks a school rule, perhaps against running in the corridors, they may be told off or even given detention by the school, but they have not broken the law. Law v Justice NEVER MISTAKE LAW Finally, law is different from justice, which may surprise you. You FOR JUSTICE. JUSTICE may have heard of the scales of justice, images of which appear IS AN IDEAL, AND LAW on most legal websites and on many court buildings. The scales IS A TOOL. of justice represent the weighing of evidence in legal cases, and L.E. Modesitt Jr the balancing of rights between the individual and the needs of society. Justice is the fair outcome that both parties in a case hope to achieve. In other words, where the law sets the right standard and follows it in practice, justice will be the result. The problem with this, as a theory, is that one side nearly always loses in court and this party may well feel that the result was not just, even though the legal process was followed. For example, euthanasia is currently illegal in the UK, so if someone kills their terminally ill spouse they will be guilty of murder, even if it is clear that they did so at the request of and to ease the suffering of their spouse. This may not seem just, but the law has set a standard and must follow it. NALP Level 3 Cert – U1 Intro to Law Page 11 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Check Your Understanding (Ref No. 1.1) Kayman, Maya and Jo all work in a solicitors’ firm called Justice4U Ltd. Their boss is Steve Catt, a solicitor. Kayman says that the name of the firm is misleading. Why might he think that? What do you think and why? See Appendix 1 for Answers The Classification of Law So, having seen what law is and why we have it, we are now going to look at the ways in which law can be classified. As we will see, whilst there are several categories of law that apply to people in England and Wales, some are broader than others, and not all of them originate or cover behaviour within these nations. Public International Law The first and broadest category is known as Public International Law which governs relationships between countries. Public International Law is sometimes called the Law of Nations or simply International Law. It includes standards of State behaviour THE RULE OF LAW IS A relating to areas such as trade and war. There are, for JEWEL OF GREAT VALUE. example, strict international rules on how prisoners of war IT IS THE MEANS BY should be treated. International law originates in treaties signed between countries and in international WHICH WE DO PUBLIC organisations, such as the United Nations or the World AND PRIVATE JUSTICE. Trade Organisation. This type of law applies to the whole Brian Dijkema of the UK and is not dependent on our membership of the European Union (EU). In other words, whilst the UK has left the EU, we are still bound the rules of international law. Municipal Law Next, there is Municipal Law. This is the law used within each sovereign State. As we have seen, due to the historical differences between the nations that make up the UK, some of this applies only to specific regions, in our case England and Wales. Municipal law is divided into three further categories: NALP Level 3 Cert – U1 Intro to Law Page 12 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Criminal law Civil law Procedural law. Criminal Law Criminal law is probably the most written about legal category, and as you may know, it is often in the news. It covers everything from murder, the most serious offence, to much more trivial ones such as minor motoring offences. Serious or otherwise, if a court finds that a crime has been committed, the guilty party will be punished by the State. This is because Criminal law covers behaviours that the government has an interest in controlling on behalf of society, so criminal cases are brought by the State against individuals. For this reason, Criminal law is also considered to be a form of public law which just means a law which affects how the State interacts with individuals. Civil Law In contrast to Criminal law, Civil law covers the legal relationship of individuals to each other. It is much broader than Criminal law and includes a wider variety of everyday behaviour. Civil law includes several sub-categories, amongst them Contract law, which deals with legal agreements, and Family law, which covers divorce and custody of children. The cases in these areas are brought by individuals against individuals and organisations. For example, a supermarket might sue their supplier if they failed to deliver Christmas puddings before 25th December. The injured party here, the supermarket, will seek a remedy for the wrong done to them, and if successful, will commonly receive financial compensation, known as damages. As Civil law deals with the relationships individuals have with each other, we can say it is a form of private law. Procedural Law Finally, there is Procedural law. This category differs from the other two because it has a very specific purpose: it sets out the rules governing legal procedures, such as the conduct of court cases. This may apply to either Civil or Criminal law because both have processes that bring about what is known as legally recognised events. For example, in Civil law, getting married or making a will is a legally recognised event and you need to follow certain legal formalities to fulfil it, such as making sure a will is signed by two witnesses (who must not be beneficiaries under the will) or getting married in a registered building. Equally, in the criminal courts, procedural law dictates where and when a case, another legal event, can be tried. For example, if you go through a red traffic light your case will be heard in the Magistrates not the Crown Court. NALP Level 3 Cert – U1 Intro to Law Page 13 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Public International Law Governs relationship between countries Municipal Law The law used within each State Criminal Law Civil law Procedural law Law dealing with offences The law between individuals Law governing legal punishable by the State. A form of private law. procedures. A form of public law. Criminal and Civil Law So, having seen what law is, why we have it and some of the ways it can be categorised, we are going to look at one of the most important distinctions you will come across in your legal studies, that between Criminal and Civil law. As we will see, the categories of Criminal and Civil law cover different areas of practice. To understand the distinction between them, you will have to understand more about each type of law. Criminal Law As we have seen above, Criminal law covers everything from murder, which is the most serious offence, to much more trivial offences such as speeding or parking on a double yellow line. Serious or otherwise, if a court finds that a crime has been committed, the guilty party will be punished by the State. This is because Criminal law governs the legal relationship between the State and the individual. In doing so, the State prosecutes a defendant and, if found guilty, the judiciary, as part of the State, may punish them with anything from fines to imprisonment. Civil Law Again, as stated above, Civil law covers the legal relationship between individuals and/or organisations. It is much broader than Criminal law and includes a wider variety of everyday behaviour. Civil law includes several sub-categories such as Contract law, which deals with legal agreements, and Family law, which covers divorce and custody of children. The injured party will seek a remedy for the wrong done to them, and if successful will commonly receive financial compensation, known as damages. Civil actions are varied, and the compensation is equally broad - anything from, for example, £100 in damages for a breach of contract, to a million-pound case against a drug manufacturer for undisclosed side effects. The person bringing the action is known as the claimant, although NALP Level 3 Cert – U1 Intro to Law Page 14 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 they used to be called the plaintiff and you may still see that term in early cases. The person defending it is known as the defendant. The party that loses the claim may have to pay damages and/or be subject to an equitable remedy, that is a non-financial way to compensate the other party. We will be looking more closely at equity later in this Unit. Burden of proof Both Criminal and Civil law are sometimes described as substantive, meaning that they set out rules on how evidence is handled in court and how the wrongdoer may be penalised. In the Criminal court, these rules are called the Criminal Procedure Rules and in Civil law the Civil Procedure Rules. To win either a Civil or Criminal case, the burden of proof, that is the obligation to prove the case, lies with the person who brings it to court. However, this person is different in civil and criminal cases and as a result, the burden of proof lies with a different party in these two areas of law. In Civil law, the burden of proof is on the injured party, that is, the claimant. In Criminal law, it is on the prosecution - normally the Crown Prosecution Service (CPS) which acts on behalf of the State. Standard of proof The amount of evidence needed to reach that burden of proof is called the standard of proof, and again that differs between Civil and Criminal law. In Civil law, the claimant must prove their case on the balance of probabilities. This simply means it is more likely than not to have merit. If the claimant’s argument meets this standard, they will win the case. In Criminal law, the standard of proof is higher, so the prosecution must prove the case beyond reasonable doubt. The defendant is innocent until proven guilty and to prove guilt, those trying the case must be satisfied so that they are sure of the defendant’s guilt. To prove a case beyond reasonable doubt, therefore, requires more evidence than to prove one on the balance of probabilities. In other words, it is easier to prove a civil case than a criminal one. Now, you might be asking yourself why should there be two different standards of proof? To understand the reasoning, you need to think about the penalties in each type of law. In Civil law, the highest penalty for a defendant is a judgement for damages, however large that may be. In Criminal law, the highest penalty is imprisonment for life. In other words, the stakes are higher in Criminal cases. It is, therefore, right that they require more evidence to convict the defendant. NALP Level 3 Cert – U1 Intro to Law Page 15 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Prosecution Bodies The Crown Prosecution Service (CPS) is not the only entity that can bring a case on behalf of the State. Whilst THE PROSECUTOR, WHO IS the CPS does prosecute the majority of criminal cases, SUPPOSED TO CARRY THE there are a number of organisations which do so as well. BURDEN OF PROOF, These include the Royal Society for Protection of Cruelty REALLY IS AN AUTHOR to Animals (RSPCA), the Health and Safety Executive Scott Turow (HSE), His Majesty’s Revenue and Customs (HMRC) and the Environment Agency. The areas that these groups focus on call for lawyers with specialist expertise to prosecute their cases. Check Your Understanding (Ref No. 1.2) Kayman, Maya and Jo all work in a solicitor’s firm called Justice4U Ltd. Their boss is Steve Catt, a solicitor. Maya and Jo are talking about a crime drama that they had watched. Maya said that it was unrealistic as everyone knows that the standard criminals have to prove is that their innocence is more likely than not. Is she correct? Why? Why not? See Appendix 1 for Answers When we started this Chapter, we looked at a list of activities covered by law. You will remember that they were: Riding a bicycle Starting a new job Having children. Now that you know the difference between Civil and Criminal law, which areas do they fall into? Riding a bicycle is covered by both Criminal and Civil law, as you can be sued or prosecuted for the way you ride it. For example, it is a criminal offence to ride a bicycle in a dangerous, careless or inconsiderate manner but if you hit and injure someone, they may then sue you for their injuries in a civil case. NALP Level 3 Cert – U1 Intro to Law Page 16 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Starting a new job is also covered by both Criminal and Civil law. You can be sued in Civil law for not fulfilling the terms of your contract, for example, for not completing the installation of a restaurant kitchen before it is due to open. You could also be prosecuted in Criminal law if you have lied on your job application, for example, by stating you are a qualified doctor when you only have a first aid certificate. Having children is again covered by both Criminal and Civil law. You can be sued in Civil law for something your child has done whilst you are supervising them, for example, if you watch fondly whilst your four-year-old breaks a priceless vase in a museum. You can also be prosecuted in Criminal law if you neglect your child, for example, by failing to provide them with adequate food and drink. What this shows us is that whilst there is a distinction between Civil and Criminal law, many activities are covered by both. Legal personality However, to be able to either bring a legal case, or to have one brought against you, you need to have something called legal personality. This just means the capacity to exercise legal rights and to be bound by legal duties. For example, legal personality must exist to enter into contracts, or to make a civil claim. Without such capacity, a person could not act on their own behalf under the law, so would not be able to make a will or take out a mortgage. A legal person has all these rights, and their status also gives rights to others, such as the right to sue them in court. As we will see, this is why adults can enter into a contract, but robots cannot! There are, in fact, two types of legal persons: natural and artificial. Natural person A natural person is simply a human being. You are a natural person under the law. In the UK, all people have legal rights from the moment that they are born, which is defined as the first breath they take independent of their mother. They continue to have rights until the moment they die, which is defined as the point at which their brain stem dies. This means that every person in England and Wales is legally recognised for the whole of their life. We automatically have the rights that go hand in hand with living in a democracy, such as the right to privacy and the right to free speech, from the moment we are born until the moment we die. However, this does not mean that people have exactly the same rights throughout their lives. Age plays an important role in what a natural person can and cannot do. For example, no one under the age of 18 can make a will, enter into a contract or vote, as the law states that these rights only apply to legal adults, people 18 or over. In addition, no one under the age of 10 can be charged with a criminal offence, as 10 is the age of criminal responsibility. This means that if a child deliberately takes a bar of chocolate without paying for it, they cannot be charged NALP Level 3 Cert – U1 Intro to Law Page 17 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 with a criminal offence if they take the chocolate at any time before their 10th birthday. However, if they take it at any time from the day they turn 10 they can be charged. Artificial person Unlike a natural person, which is a human being, an artificial person is a corporation, an organisation or group of people who are ‘incorporated’ to make a single entity under the law. The most common example is a limited liability company. This means that an artificial person is not alive, but it is recognised by the law as having legal rights and duties distinct from the individuals who comprise it. These rights become especially important where claims are involved, because any legal action is brought against the corporation and not the people who work in it, or even own it. For example, we’ve seen that Kayman, Maya and Jo all work in a solicitors’ firm called Justice4U Ltd and that their boss is Steve Catt, a solicitor. If Jo is injured at work when a large pile of legal papers falls onto his foot breaking several bones, he would sue the firm itself as an artificial legal person, rather than Steve Catt. This is because the firm is likely to have more money and should also have insurance. This is clearly advantageous for Jo, but it also gives Steve some protection from financial hardship in case they lose a civil case and need to pay compensation. In other words, it limits their individual liability. Equally, if one of the firm's clients refuses to pay for work done, the client can be sued for the debt. This would again be an action by the company, rather than Steve Catt. Legal personality is important to companies because it gives the people who run them more protection. If things go badly wrong and the company goes out of business, the owners are not personally liable for any debts. Corporations (another name for companies) can enter contracts, own property, and even commit corporate manslaughter. In short, a corporation is completely independent of the people who manage it; it has a separate legal existence all of its own. Check Your Understanding (Ref No. 1.3) Steve Catt is late for work; he turns into the company car park too fast and injures Kayman who is also arriving. Would Kayman sue Justice4U Ltd or Steve Catt personally? Why? See Appendix 1 for Answers NALP Level 3 Cert – U1 Intro to Law Page 18 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Learning Chapter 2 - The Origins of Law Outcome 1 Origins Having seen that the law in England and Wales can be divided into several categories, we are going to look more closely at where that law originates. You may know that both the US and most European countries have legal systems based in ancient Roman law, meaning that they have a written legal code. This is not the case in England and Wales. This doesn't mean that none of our laws are written down, many of them are, but it does mean that a large number of them originate either in: Common law which is based on decisions made in previous court cases, or Equity, which is based on the concept of fairness. Laws may also derive from statutes (Acts of Parliament) as we will see later in this Unit. 1066 To understand the difference between common law and equity we are going to look at some legal history going back to the 11th century and the Norman invasion. As you will know, 1066 is the date of the Norman Conquest when William the Conqueror beat King Harold at the Battle of Hastings. William immediately set about reforming the legal system in his new Kingdom. Common Law Before the Conquest, laws depended on local customs, meaning that the same offence could result in different punishments depending on where you lived. William wanted to standardise the law and one of the ways he went about this was to send his representatives across the country to check on local administrations and to THE COMMON LAW OF adjudicate on disputes. These representatives ENGLAND HAS BEEN were known as Itinerant Justices and when LABORIOUSLY BUILT ABOUT A they returned to the Palace of Westminster, MYTHICAL FIGURE – THE FIGURE they would discuss the customs they had found OF ‘THE REASONABLE MAN’ and the justices (judges) would start to follow A.P. Herbert each other’s previous decisions, using them as the basis for a consistent, common, body of law. This was a long process, but by the 12th century, William’s successor, Henry II, sent groups of judges from the central courts at Westminster to all the counties of England, not only to preside over local courts as they had before, but also to apply a new, common law to the whole of the country, which would eventually NALP Level 3 Cert – U1 Intro to Law Page 19 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 include Wales. The common law therefore reflected decisions made by judges and was common to the whole of England and Wales. To reflect these changes courts were also developed at Westminster. These became: The Court of the Exchequer, which dealt with the collection of taxes, the King’s revenue. The Court of Common Pleas, which dealt with disputes between commoners. The Court of King’s Bench, which dealt with disputes between commoners and the King. Advantages of Common Law In making their decisions, common law judges referred back to earlier cases. They could do so because previous judgements were written down, setting out why a particular decision was made. This made the law more predictable and is the basis of the doctrine of precedent, which we still use today. We will look at this more closely later in this Unit, but for now you just need to know that it means that similar cases should be dealt with in a similar way. Disadvantages of Common Law However, whilst it seemed like a good idea to have one law for the whole of England and Wales, early common law had many disadvantages: It was limited to starting an action by a formal writ (a type of claims form). It was very procedural; you could lose just because you hadn’t followed the correct process, whatever the actual merits of your case. The concepts of mortgages and trusts were not recognised; we will look at these later in this Chapter. The only available remedy was damages, which was not always adequate for the injury complained of, as we will also see later in this Chapter. Equity The result was that the common law was seen as inflexible and unfair and because of this, a concept called equity arose. People didn’t want to use the common law system because of its problems, so they started going directly to the King who was seen as the ‘fountain of justice.’ However, the King was a busy man, so his Chancellor (now known as the Lord Chancellor) began to help him with the common law appeals. This resulted in the development of the Court of Chancery in the 14th Century, which still exists today. Advantages of Equity As it had developed as a reaction to the rigidity of common law, this court was more flexible; the litigants would appear in front of the Chancellor, explain the problem, and then answer his NALP Level 3 Cert – U1 Intro to Law Page 20 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 questions. The verdict would be based on the Chancellor’s moral view of the matter. He could make whatever decision he thought fair, or equitable, without looking at previous cases. Equity also recognised the concepts of mortgages and trusts for the first time. Disadvantages of Equity Equity, however, was not without its own problems: As the Lord Chancellor was not bound by previous case law decisions, there was a lack of certainty as to what would happen in each case. Equity was sometimes described as making decisions which varied ‘according to the length of the Chancellor's foot’. In other words, it varied widely depending on who happened to be in the position of Lord Chancellor. Conflicts arose between the common law and equitable courts, and it wasn’t clear what the result should be if there was a direct conflict. This came to a head in the very first case you will study. It is called the Earl of Oxford’s Case (1615) and was an argument about who owned some land in London. Earl of Oxford’s Case (1615) A piece of land in London was sold by Magdalene College, Cambridge and was ultimately bought by the Earl of Oxford. Magdalene College then said that they did not have the power to sell it after all and wanted the land back. Both parties went to court to decide who owned it. The equity court found for the Earl of Oxford, but the Common law court found for Magdalene College, so both parties went to see the King, James I, and asked him to make the final decision. As a result, it was decided that when there was a conflict between equity and common law, equity should win. This remains the case today and meant that the Earl of Oxford kept the land. Judicature Acts 1872 – 1875 The decision that equity should always prevail over common law was later enshrined in the Judicature Acts 1872 – 1875, which also merged common law and equity. Although one of the Divisions of the High Court was, and is still called Chancery, all courts now administer both equity and common law, with equity reigning supreme in any dispute. Be careful, however, whilst equity prevails where there is a dispute, it only supplements the common law by filling in any gaps, which is why it is sometimes known as a gloss on the common law. It exists to temper the NALP Level 3 Cert – U1 Intro to Law Page 21 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 harshness and rigidity of common law. You may wonder why equity should be the winner if there is a dispute. The reason is, because it is a system based on fairness and common sense, and it can never be wrong for a legal system to be fair. Check Your Understanding (Ref No. 2.1) Kayman, Maya and Jo all work in a solicitors’ firm called Justice4U Ltd. Their boss is Steve Catt, a solicitor. They are discussing what happens if there is a conflict between common law and equity. Kayman says that the common law always prevails as it came before equity. Maya says equity always prevails as law should be fair. Jo says that equity only fills in the gaps in the common law. Who do you think is right and why? See Appendix 1 for Answers Mortgages and Trusts Having seen how equity and common law developed, we are going to look in more detail at the evolution of trusts and mortgages and how and why they developed. These are both equitable. Mortgages Today, many of us take out a mortgage in order to buy our homes, but if equity hadn’t stepped in, we wouldn’t be able to borrow money in this way. It created the rules that we have today which make mortgages legally enforceable. A mortgage is a loan taken out to buy property or land. Mortgage means dead pledge, mort being the French for dead. It is called a dead pledge because the loan must be paid back by the time you die at the very latest. For example: You want to buy a house for £175,000. You have £25,000 saved so need to borrow £150,000 to be able to buy it. You need a mortgage. You are known as the mortgagor as you are granting a right over your land to the mortgagee. This is the bank or building society who lend you money to buy the house on the basis that if you fail to keep up your repayments, they can repossess it. This means that NALP Level 3 Cert – U1 Intro to Law Page 22 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 the house is your property, and your name is on the title deed, but if you cannot keep up your agreed repayments on the £150,000 loan, the mortgagee (the bank or building society) can repossess your house and sell it to repay themselves. Once they have done this, if there is any money left, you get that money back. These rights were created using equitable principles. Trusts The other concept developed under the rules of equity was that of trusts. In the Middle Ages, knights going to the Crusades wanted to protect their family property in their absence. They often did so by transferring the ownership of their property into the hands of a trusted relative or friend who could act in their place, managing the estate until their return. The knight couldn’t transfer it to his wife as married women had no legal right to own property until 1870. However, there was a problem: under common law, by transferring the property to the trusted relative it became their property and they didn’t have to give it back. This meant that the knight could return to find his friend refusing to vacate his castle and there was nothing the knight could do to make him leave. This was clearly unfair, so equity stepped in and developed the concept of the trust. A trust is a way of managing assets, whether money, investments, land or buildings, for other people. The person managing the property is the trustee and they can sell it or move where money is invested but all of this is done for the sake of the beneficiary to whom the property will eventually go. This means that when our knight went off to war, he could transfer his property to a friend, the trustee, who would look after it as if it was their own but, crucially, they had to always act in the family’s best interest because the family were the beneficiaries. This included handing the property back when the knight returned. Trusts still exist today. For example, if you open a bank account for a baby you are the trustee of any money paid into it and can decide which bank you should use and what it will be invested in, but you are not allowed to spend the money on yourself because the baby is the beneficiary and has a right to that money when they are old enough. Equitable remedies As well as the concepts of mortgages and trusts, equity also changed the remedies available in court. As we have seen, in the common law courts the only remedy available was damages. In some cases, this was adequate, but the fact that there was nothing else showed inflexibility and therefore, damages are not adequate in every circumstance. NALP Level 3 Cert – U1 Intro to Law Page 23 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 For example, if you want to buy a house and have exchanged contracts to do so then there is a binding obligation on you and the seller. In common THE PRECEPTS OF THE LAW law, if the seller then refuses to move out the only MAY BE COMPREHENDED remedy for the breach of the contract is damages. UNDER THESE THREE This is inadequate because if this is the house you POINTS: TO LIVE HONESTLY, have always wanted, you do not want cash to buy a TO HURT NO MAN different house, you want this particular one. As a WILLFULLY, AND TO RENDER result of this inflexibility, equity created four main EVERY MAN HIS DUE remedies in addition to the common law remedy of CAREFULLY damages. Aristotle The 4 remedies are: 1) Injunction This orders the defendant to do something (a mandatory injunction) or not to do something (a prohibitory injunction). You will have heard of celebrities obtaining injunctions against the publication of tales about their lives - these are prohibitory injunctions. Equally, were you to build a house on someone else's land they could get a mandatory injunction to make you remove it. 2) Specific performance This compels a party to fulfil an agreement, for example, selling you the house you’ve always wanted, in our previous example. 3) Rescission This cancels a contract and takes both parties to where they were before it started. For this remedy to be available, the claim must be made reasonably quickly. This was not the case in Leaf v International Galleries (1950). Leaf v International Galleries (1950) In 1944, Mr Leaf bought a painting of Salisbury Cathedral for £85 from International Galleries, which both parties thought was by the famous English romantic painter, Constable. Five years later, Mr Leaf tried to sell the painting, and in the process discovered that it was, in fact, a fake. Mr Leaf went to court to ask for rescission of his contract with International Galleries, but the court refused his claim because too much time had passed for this to be an available remedy. NALP Level 3 Cert – U1 Intro to Law Page 24 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 4) Rectification This corrects mistakes in written contracts if they don’t express the true intentions of the parties. For example, if a contract states that a corner shop will buy 1000 tins of baked beans when 100 was the number agreed verbally by the parties, both parties can agree to rectify the contract to reflect the oral agreement. Equitable Maxims As you will have gathered, equity made great changes to our common law system, making it fairer and more flexible, and today a court can award any of those remedies depending on the circumstances of the EQUITY IS THAT IDEA OF case. However, as we have also seen, equity is a JUSTICE WHICH discretionary system based on fairness and is not as strictly CONTRAVENES THE case-based, as common law is. As a result, equity WRITTEN LAW developed a number of sayings or maxims outlining its Aristotle remit. The maxims help to govern the way equity operates; they make sure that equity is fair in the way it is applied. All maxims are discretionary in nature and courts may choose whether they wish to apply these principles. We will look at the most common maxims and what they mean, but if they seem a little obscure just remember that whenever the word equity is used it just means fairness. 1. Equity will not suffer a wrong without a remedy. This means that equity will create new legal remedies to achieve a fair outcome, and this demonstrates its flexibility. 2. Equity follows the law. Meaning that equity is only used where the common law has no remedy. Remember that common law came first, and equity developed to fill the gaps left by it. 3. Equity will not assist a volunteer. This means equity cannot be used to take back a benefit that was voluntarily, but mistakenly conferred. Remember, equity is fair and if you give away a benefit, even mistakenly, you can’t use equity to get it back. 4. Where the equities are equal, the first in time shall prevail. Meaning that where there are two or more equal but competing equitable interests the first in time will succeed. There has to be a rule to deal with this situation and this is the fairest. 5. He who comes into equity must come with clean hands. This has nothing to do with personal hygiene. It just means that you cannot ask for an equitable, or fair, remedy unless you have also behaved well, or fairly, yourself. 6. Delay defeats equities. Meaning that if you delay asking for an equitable remedy you are unlikely to be successful. Again, because it is based on fairness. The longer you wait to ask NALP Level 3 Cert – U1 Intro to Law Page 25 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 for a remedy, the less fair the result will be. We saw this above in Leaf v International Galleries (1950) 7. Equality is equity. Meaning that generally, everyone in the same legal position will be treated equally. It is the fair thing to do. 8. Equity looks to the intent rather than the form. Unlike the common law, equity is more interested in the parties’ intentions than the actual words of a written document because that is fairer than tying them to the written word. Again, we saw this in our example of rectification above. 9. Equity looks on that as done which ought to be done. Meaning that when individuals are required by their agreements to do something, they are expected to do it properly. And finally, 10. Equity acts in personam. This means that equity claims are generally against specific people. As a result, if a defendant is within England and Wales an equitable remedy can be applied to their property even if the property is outside of these areas. This is because the claim is against the person not the property, and that is seen as fairer. There are other equitable maxims but those stated above are the most common. Common Law, Equity and Statutes Finally, given that those working in the legal profession are meant to be detail driven you may be surprised to find that the words ‘common law’ are often used carelessly. You may find our legal system described as being made up of common law and statutes. When people say this, they are using common law to mean case law, whilst you now know it is based on common law and equity. Statutes mean Acts of Parliament, which we will be considering later, so it is more accurate to say that our law is based on, common law, equity and statutes. Check Your Understanding (Ref No. 2.2) Kayman, Maya and Jo all work in a solicitors’ firm called Justice4U Ltd. Their boss is Steve Catt, a solicitor. Jo wants to buy a house for £150,000 with savings of £50,000. He has been offered a mortgage by Big Bank PLC and asks Steve what rights he and the bank will have over the house. What do you think he will say and why? See Appendix 1 for Answers NALP Level 3 Cert – U1 Intro to Law Page 26 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Learning Chapter 3 - The Legal Profession Outcome 1 Having considered what law is, how it is classified and how it developed, we are now going to turn to those who work in law. Unlike most other countries, the legal profession in England and Wales has two main branches: barristers and solicitors. You may also see the term lawyer used but in this country that’s just a general term for anyone working in law; all paralegals, for example, are also lawyers. We will look at the work and training of barristers, solicitors and NALP paralegals in turn, starting with barristers. We will also briefly cover the other branches of legal professionals at the end of this Chapter. Barristers There are around 17,000 practising barristers in England and Wales, and all must be registered with the Bar Council. This is rather like a trade union as it SERVANTS OF ALL safeguards their interests and ensures that standards of ethics, AND YET OF NONE equality and diversity are maintained. The Bar Council’s regulatory The motto of The Bar arm is called the Bar Standards Board. It sets the educational and training requirements for becoming a barrister and regulates their behaviour. Qualifying as a barrister There are 5 stages to qualifying as a barrister: 1) Academic stage. You need either a degree in law, known as an LLB or BA, or to have a degree in a non-law subject. If you have a non-law degree, then you must pass either a Graduate Diploma in Law or the Common Professional Exam. Whatever the subject of your degree, you must have attained at least a 2:2 although, in reality, most barristers have achieved either a first-class or a 2:1 in their degree. 2) Join an Inn of Court. There are four Inns of Court and they have been in existence since the 14th century. They act in a similar way to a Guild in that they provide guidance, scholarships, extensive law libraries, and a social network for members. All barristers must be a member of one of the Inns which are: Middle Temple, Inner Temple, Gray’s Inn and Lincoln's Inn. There is an old rhyme that attempts to delineate each one’s identity: 'Inner for the rich, Middle for the poor, Lincoln’s for the scholar, Gray’s for the bore.' NALP Level 3 Cert – U1 Intro to Law Page 27 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 It has no basis in fact but it's a good way to remember them! You can choose which one to join and, in reality, there is no difference between them. They all have dining facilities which are, perhaps unusually, important for the next stage. 3) Vocational stage You now need to pass the Bar Training Course. This is a year-long course including advocacy training, exams and 12 Qualifying Sessions with your Inn. These mostly involve eating a dinner at your Inn, combined with an educational talk which will cover one or more of the following categories: Ethics, standards and values Advocacy skills Legal knowledge, justice and the rule of law Equality, diversity and inclusion Preparation for Pupillage, career development and wellbeing. 4) Call to the Bar. If you pass your Bar Training Course, you are formally called to the Bar at your Inn. This is a ceremony in which you are literally called forward in front of your Inn and given a Certificate of Call. You can now call yourself a barrister, but you are still not qualified. 5) Pupillage. You now have to undertake one year’s pupillage (so-called because you are known as a ‘pupil’). This is practical training and places are highly competitive; only about 40% of those passing the Bar Training Course succeed in getting pupillage. If you are lucky enough to secure a place, you spend the first 6 months shadowing your pupil supervisor, who is an experienced barrister. In the second six months you can appear in court in your own right. You normally start with small matters like bail applications. To complete pupillage successfully, your supervising barrister must confirm that you have met the required standard. When this is done, you may apply to the Bar Standards Board for your first Practising Certificate. You cannot practise as a registered barrister in England and Wales unless you hold one. As well as achieving your Practising Certificate, the end of pupillage is when Chambers (the group of barristers who work from the offices where you have pupillage) assess their pupils and decide whether to invite them to become a member, or tenant. This is a permanent place in Chambers but only just over half of pupils will be offered this. The work of barristers If you complete all of the above you are a practising barrister, so what sort of work will you do? Most barristers are self-employed but share Chambers with other barristers and a clerk. Whilst the clerk is not legally qualified, they are hugely influential as they allocate the cases to the barristers and negotiate their fees. Barristers themselves are specialist advocates, which means that they appear in court. Because they undergo advocacy training as part of their qualifications, NALP Level 3 Cert – U1 Intro to Law Page 28 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 all barristers have the right to appear in all courts, anywhere from the Magistrates to the Supreme Court. Barristers can also deal with any area of law, whether civil or criminal, but will probably specialise in one or the other. They also write Counsel’s Opinions on cases for solicitors and draft legal documents, such as statements of case. These are formal documents in which parties set out the case that they will prove at trial. King’s Counsel Experienced barristers can apply for King’s Counsel status (also known as KCs or ‘taking silk’ because that is what their gowns are made of). You will not be surprised to hear that when there is a Queen on the throne they are known as Queen's Counsel or QCs. This is a mark of outstanding ability and only a limited number succeed in their application. They are normally instructed in very serious or complex cases and the most senior judges once practised as KCs. All barristers, whatever their seniority, wear gowns and horsehair wigs when appearing in the higher courts. Employed barristers. Whilst most barristers are self-employed, some are directly employed by the Crown Prosecution Service or Local Government and can work with solicitors or non-lawyers in Legal Disciplinary Practices and alternative business structures (ABS). These structures allow non-lawyers to have a financial stake in a law firm. This means new businesses can be set up based on shared ownership between non legally trained managers and lawyers. The Code of Conduct As we have already seen, barristers are regulated by LAWS CONTROL THE LESSER the Bar Standards Board which has a Code of MAN…. RIGHT CONDUCT Conduct. The full text can be found here but one of CONTROLS THE GREATER ONE. the cornerstones of this Code is called the cab rank rule. It says: Mark Twain “A self-employed barrister must comply with the 'cab-rank rule' and accordingly he must, irrespective of whether his client is paying privately or is publicly funded: (a) accept any brief to appear before a Court in which he professes to practise; (b) accept any Instructions; (c) act for any person on whose behalf he is instructed and do so irrespective of (i) the party on whose behalf he is instructed (ii) the nature of the case and (iii) any belief or opinion which he may have formed as to the character, reputation, cause, conduct, guilt, or innocence of that person.” NALP Level 3 Cert – U1 Intro to Law Page 29 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 In other words, barristers must represent the clients that they are given; they can’t pick and choose, as a defendant's right to legal representation in court is paramount. Barristers must also: NOT bring the profession into disrepute NOT accept gifts NOT mislead the court Are bound by a duty of confidentiality to their clients. Continuing Professional Development (CPD) Barristers must also undertake CPD which the Bar Standards Board defines as “work undertaken over and above the normal commitments of barristers with a view to such work developing their skills, knowledge and professional standards in areas relevant to their present or proposed area of practice, in order to keep themselves up to date and maintain the highest standards of professional practice.” In doing so they must reflect on the quality of their practice, identify their learning and development needs, and plan to address those needs. They must also keep a record of their learning and development activities. Check Your Understanding (Ref No. 3.1) Kayman, Maya and Jo all work in a solicitors’ firm called Justice4U Ltd. Their boss is Steve Catt, a solicitor. Steve is instructing a criminal barrister called Kit Dakin KC to defend a client of the firm on an allegation of rape. Kayman says that, if he had been offered the case, he would have refused to take it. Jo says that the barrister had no choice in the matter. Who is correct and why? See Appendix 1 for Answers Solicitors So, having considered how barristers qualify, we are going to turn to solicitors. There are over 150,000 practising solicitors in England and Wales, making theirs by far the largest branch of the NALP Level 3 Cert – U1 Intro to Law Page 30 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 legal profession. Solicitors cover every area of law, and some have the same rights of audience as barristers, which means that they can appear in any court. Qualifying as a solicitor There are 3 main stages to becoming a solicitor: 1) Academic stage. Whilst it is possible to become a solicitor through an apprenticeship or other non-academic routes, most trainee solicitors still enter the profession as graduates, although their degree doesn’t have to be in law. The next step is to take and pass the Solicitors Qualifying Exam (or SQE) Parts 1 and 2 and doing so will, not surprisingly, take those without a law degree longer than those who have studied law. Once the SQE is passed you can move to the next stage. 2) Two years full-time qualifying work experience. This must involve what is known as legal activities, which are defined by s12 of The Legal Services Act 2007 as: Reserved legal activities, which we will look at more closely when we look at the work that paralegals can and can’t provide; and/or The provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes; and/or The provision of representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes. These are wide definitions which mean that you can undertake qualifying work experience in most organisations which provide legal services. It can also be gained in up to four organisations and in both paid and volunteer work. Once this stage is completed you can move to the third and final stage 3) Admission to the Roll of Solicitors. This is a formal ceremony at the Law Society in London where new solicitors are presented to the Law Society's president and their names are added to the Solicitor’s roll, which is a register of qualified solicitors. The work of a solicitor Once qualified, solicitors’ work is very varied and can be office and/or court based. Solicitors provide advice and assistance on matters of law. They are the first point of contact for people and organisations such as companies and charities seeking legal advice and representation. Most solicitors work together in solicitor-owned law firms which are owned by the partners who pay their staff and take their earnings from any profits but are at personal financial risk if the firm fails. NALP Level 3 Cert – U1 Intro to Law Page 31 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Alternatively, they may work in Limited Liability Partnerships or LLPs, which give financial protection to the partners in the event of failure. Solicitors may also work in central or local government. They may also work in an THE WISDOM OF A LAW-MAKER alternative business structure (ABS) and CONSISTETH NOT ONLY IN A multidisciplinary practices (MDPs) which PLATFORM OF JUSTICE, BUT IN provide legal services but are funded and THE APPLICATION THEREOF; controlled by a company such as the Co- TAKING CONSIDERATION BY operative Group, which provides legal advice WHAT MEANS LAWS MAY BE amongst other services. Whilst it is technically MADE CERTAIN still possible for a solicitor to work as a sole Francis Bacon practitioner, doing so is increasingly rare. If working for a high street firm, a solicitor's job may involve many areas of law, including conveyancing, wills, divorce, advice on criminal and civil law and pre-trial procedures, but whatever area they specialise in the fundamentals of the job remain largely the same - being a mixture of advisory and contentious (dispute) work, such as: meeting clients, finding out their needs and establishing how to help; researching relevant areas of law and proposing courses of action to clients; drafting letters, contracts and other legal documents; acting on behalf of clients in negotiations and occasionally representing them at tribunals or in court. The Solicitors’ Regulation Authority Solicitors are governed by their professional body, the Solicitors’ Regulation Authority, or SRA. This is a professional body that regulates all solicitors in England and Wales. Their aim is to protect and help the public by making sure that solicitors’ and law firms meet professional standards of conduct. In doing so they: set the standards for qualifying as a solicitor; monitor the performance of organisations that provide legal training; draft the rules of professional conduct; provide guidance to solicitors on ethical issues; administer the roll (register) of solicitors; provide information to the public about solicitors; NALP Level 3 Cert – U1 Intro to Law Page 32 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 investigate concerns about solicitors' standards of practice; set requirements for solicitors' continuing professional development. SRA Standards and Regulations 2019 The main rules relating to solicitor conduct are contained within the SRA Standards and Regulations 2019, which contain seven principles that outline the professional standards expected of all firms, and individual practitioners. They are the starting point for solicitors when they are faced with an ethical dilemma. The SRA Standards and Regulations 2019 requires that solicitors act: in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice; in a way that upholds public trust and confidence in the solicitors’ profession, and in legal services provided by authorised persons; with independence; with honesty; with integrity; in a way that encourages equality, diversity and inclusion; in the best interests of each client. The rules then elaborate on these principles with two Codes of Conduct, one for individual solicitors and another one for firms. The code for individuals outlines the behaviour expected of solicitors when providing legal services to the public. For example, paragraph 8.7 says that clients must receive the best possible information about the likely overall cost of their matter. The full Standard and Regulations can be found at https://www.sra.org.uk/solicitors/standards- regulations/. CPD Like all professionals, solicitors also must undertake continuing professional development – CPD, which the SRA refers to as ‘continuing competence’. The SRA states that to provide a proper standard of service to their clients, solicitors must undertake regular learning and development so their skills and knowledge remain up to date. Like barristers, solicitors are expected to reflect on the quality of their practice, identify their learning and development needs and plan to address those needs. They must also keep a record of their learning and development activities. NALP Level 3 Cert – U1 Intro to Law Page 33 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 Rights of audience Both barristers and solicitors have rights of audience in court. This means that they have the right to go into court and speak on behalf of their client. However, they tend to represent clients in different circumstances - and in different courts. You will find this easier to understand if we look at the structure of the modern court system. Click on the link below to see a diagram of the courts in England and Wales, and how barristers and solicitors fit within this structure. https://www.judiciary.uk/wp-content/uploads/2021/07/courts-structure-0715.pdf. Please note: You may come across references to the QBD (Queen’s Bench Division) but this court became the KBD (King’s Bench Division) following the death of Her Majesty Queen Elizabeth II and the ascension to the throne of His Majesty King Charles III in September 2022. Rights of audience for barristers As we mentioned earlier, all barristers have rights of audience in all courts. However, they tend to represent clients in the higher courts such as the Crown Court, the Court of Appeal, and the highest court of all, the Supreme Court. As you may know, the Crown Court hears the most serious criminal cases, such as murder and other crimes where the punishment is likely to involve prison. These cases are known as ‘indictable-only’ cases because the defendant is served with an indictment, a document that lists the charges against them. The Court of Appeal has both a Civil and Criminal division and, as the name implies, hears appeals in both kinds of cases. Finally, there is the Supreme Court which has the final word on cases of national importance. We will look at this court structure again later in this Unit. Rights of audience for solicitors All solicitors have rights of audience in the Magistrates and County Courts. The Magistrates Court is where all criminal cases start, but it deals primarily with offences which aren’t imprisonable, which are also known as summary offences. It also hears more minor triable-either-way offences, so called because they can be tried in either the Magistrates or Crown Courts, and some minor civil matters. However, the majority of civil cases are heard in the County Court. Higher Courts Advocacy Qualification Solicitors may also appear in the Crown Court when appealing convictions and/or sentences from the Magistrates Court but only if they represented the client there. However, they can go on to obtain a Higher Courts Advocacy Qualification, giving them rights of audience in the higher courts. Those who do so are called solicitor advocates, and they have the same rights of audience as barristers. Of the 150,000 solicitors in England and Wales about 5% are solicitor advocates, most NALP Level 3 Cert – U1 Intro to Law Page 34 of 108  NALP Level 3 Certificate for Paralegal Technicians UNIT 1 of whom work in the criminal courts. Solicitor advocates can apply for King’s Counsel status and a number are successful every year. Check Your Understanding (Ref No. 3.2) Kayman, Maya and Jo all work in a solicitors’ firm called Justice4U Ltd. Their boss is Steve Catt, a solicitor. Steve tells them that he’s going to be appearing on behalf of a client in the Crown Court. He is not a Higher Court advocate. Jo asks how he can do so. What does Steve say and why? See Appendix 1 for Answers Paralegals National Association of Licensed Paralegals Now that you know how both barristers and solicitors qualify and what they do, we are going to turn to paralegals. Although unqualified or semi- qualified staff have worked in solicitors’ offices as far back as Victorian times, paralegals as a profession in the UK date back to the 1980s. In 1987, the National Association of Licensed Paralegals was formed. Its aim was, and remains, to raise the status of paralegals so that they are recognised as professionals in their own right. The work of paralegals There are currently about 100,000 paralegals, making them second only to solicitors within the legal services market, and working as a paralegal is one of the fastest growing legal WITHOUT A SHADOW OF A roles in the UK. As the key people who assist DOUBT, PARALEGALS WILL PLAY solicitors, paralegals are vital to the operation of A KEY ROLE IN THE FUTURE OF most law firms, and those with experience do LEGAL SERVICES – ESPECIALLY virtually the same work as solicitors. They may IN ASSISTING CONSUMERS conduct research, write reports on cases, and WITH EVERYDAY MATTERS interview witnesses in preparation for a case. Amanda Hamilton, NALP Patron Experienced paralegals can become partners in traditional law firms or set up on their own as a Professional Paralegal Practitioner. Paralegals can also be found in the legal departments of local NALP Level 3 Cert – U1 Intro to Law Page 35 of