UOL Y1 Tutorial Notes (LSM 07-10) PDF
Document Details
Uploaded by RapidBaltimore5406
University of London
Tags
Summary
These are tutorial notes for a first-year law course at the University of London (UOL). The notes cover topics related to law-making, institutions like Parliament, and judicial pronouncements.
Full Transcript
42 7 The position of LC in the past had clearly 0 breached SOP. How had the reform in CRA 2005 addressed this breach? Intro: 1. Quote: “All would be lost if the same ruling body / exercise three powers, that of lawmaking, executing public resoluti...
42 7 The position of LC in the past had clearly 0 breached SOP. How had the reform in CRA 2005 addressed this breach? Intro: 1. Quote: “All would be lost if the same ruling body / exercise three powers, that of lawmaking, executing public resolutions and judging crimes and civil causes.” -Baron de Montesquieu 2. This essay question necessitates... 3. First and foremost, we would... 4. Def of SOP 4.1 Polarisation of gov into major core institutions such as L E J -> Each with separate and independent functions 4.2 GR: X One single member / sit in more than one institution 4.3 Tdy’s SOP in the UK -> X Absolute SOP like US as X codified consti but / checks and balances to preclude abuse of power Body: 1. How LC had Breached SOP 1.1 HOL Speaker -> LC goes thru HOL decisions to have a vote 1.2 Head of Judiciary -> LC represents UK Judiciary in international and domestic judicial events -> Sits as judges in all courts -> Holder of seal to approve judicial letters -> Designates law lords -> As a spokesman who defends the Judiciary from public ridicules 1.3 A.W Bradley: Accentuates the need for a perspicuous division between the roles of gov branches to avert conflict of interest 43 2. Post-CRA 2005 2.1 Uphold judicial independence and succinct SOP 2.2 LC X = HOL Speaker(HOL elects its own Speaker), X = Head of Judiciary(LCJ took over), X Directly appoint judges(JAC recommends) 2.3 Roger Masterman: Reforms / modernise UK’s consti mechanism, eliminating the grey areas of each gov branch’s roles 3. Is the Reform Successful? 3.1 Crime and Courts Act -> Diminished LC’s role further by restraining mandate of appointing lower court judges to LCJ 3.2 Improvement -> Decent reform that diminished LC’s roles but X the optimal -> Streamline by completely ousting LC from appointment of judges as JAC / solely recommends and LC / final say to indirectly designate judges 3.3 Dawn Oliver: CRA 2005 / resolve the LC’s overlapping mandate 3.4 Robert Hazell: Reform / clarify UK’s SOP but further modifications / necessary to consolidate judicial independence 3.5 The CRA 2005: An Analysis”: Reforms X fully address the underlying issues of SOP Con: 1. Comment 2. Hope 3. Quote: “The independence of the Judiciary and the ROL should be defended from inside the cabinet as well as inside the Parliament.” -Lord Hailsham 44 8 Briefly explain what Lord Woolf’s main reforms 0 were and has this reform achieved its intended aim? Intro: 1. Quote: "The civil justice system must X only do justice but also / seen to do justice." –Lord Woolf, in the Woolf Reforms 2. This essay question necessitates... 3. First and foremost, we would... 4. Lord Woolf’s reforms -PAP, CPR, track system, case management and Part 36 Why this reform X achieve -front-loaded cost, inconsistent application and complexity 5. Some argue... whereas some argue... 6. Def of CJS 7. Probs with CJS b4 Lord Woolf’s Reform 8. Access to Justice Report 8.1 Lord Woolf / appointed to research the CJS to recommend reforms 8.2 Intended to minimise complexity, cost and delay Body: 1. Lord Woolf’s Main Reforms(Police Cadet tracks case part) 1.1 PAP -> Professor Genn: discussed the role of PAP in promoting settlement and reducing litigation 1.2 CPR -> Sir Rupert Jackson: commented on the CPR’s role in cost control and its effectiveness 1.3 Track System -> Professor Adrian Zuckerman’s “Zuckerman on Civil Procedure: Principles of Practice”: track system = access to justice 45 .4 Case Management 1 -> Three Rivers District Council v Bank of England : highlighted court’s approach to case management 1.5 Part 36 -> Masood Ahmed’s “Part 36 Offers & Tactical Considerations”: wrote about cost implications and technical contemplations of Part 36 1.6 Pros of reforms -> Decrease the number of cases by 25% as many started using ADR for quicker decision-making -> Settle cases earlier becuz of CPR 2. Why this Reform X Achieve Its Intended Aim 2.1 Front-loaded Cost & Delay ORCA’s “Civil Justice? The Impact of the Woolf’s Reform on PAP”: -> PAP and case management increase higher expenses for litigants which hinder the poor ones from accessing to justice -> Case management increase judicial workload and procedural intricacies and thus, lead to delays 2.2 Inconsistent Legal Application -> Case managements vary subjectively as some judges adopt proactive measures while some remain passive -> Cause unequal experiences for litigants and impair CJS’s effectiveness -> Denton v TH White : highlighted the challenges of consistent legal application .3 Complexity and Procedural Technicalities 2 -> New rules and protocols make the litigation proceeding more complicated -> Cause confusion and technical errors, thereby defeating the purpose of simplifying CJS -> National Consumer Council Survey: 74% stated CJS = too complex 46 .4 Professor Zander’s Criticism 2 -> Lord Woolf diagnosed the issue wrongly as delay X caused by system but types of cases, parties, court procedures and administration .5 Professor Genn’s Criticism 2 -> Lord Woolf Reform X consider the litigants’ needs enuf in relation to ADR which X = suitable for all cases 3. New Reforms 3.1 Unified System -> Labour GOVT’s “Single Civil Court?”: abolish county court and give HC more jurisdiction to hear all civil cases at first instance -> X Operate two civil courts so X appoint more judges and / cut down legal costs .2 Abolishment of PAP 3 -> BAR Council’s “Reforming the Civil Litigation”: PAP increases length and expense of legal proceedings which vs. litigants’ consumers .3 Change of Court Jurisdiction 3 -> Labour GOVT’s “Focusing Judicial Resources Appropriately”: abolish HC and allow CC to hear all civil cases at first instance unless the cases / exceptionally high features Con: 1. Comment 2. Hope 3. Quote: “Lord Woolf’s Reform X = temporary hiccup but fundamentally flawed.” Professor Zander, LSE Law Professor 47 9 Pros and Cons of CJS and Why is the Small Claim 0 Track so Popular? Intro: 1. Quote: “Litigation is the pursuit of practical ends, not a game of chess.” -Felix Frankfurter, former United States Supreme Court Justice 2. This essay question necessitates... 3. First and foremost, we would... 4. Pros of CJS -peaceful private dispute resolution, development of case laws and uphold human rights Cons of CJS -complexity, costly and delay, adversarial process and judicial activism Why small claim track is so popular -time-saving, cost-effective, informal and simple proceeding 5. Some argue... whereas some argue... 6. Def & Concept of CJS Body: 1. Pros of CJS 1.1 Peaceful Private Disputes Resolution -> Solve legal issues without violence by providing the best remedy -> Deliver justice and fairness by condemning the losing party and compensating the winning party -> Professor Genn: CJS provides a structure for solving civil disputes peacefully .2 Development of Case Laws 1 -> As a roadmap for the judges to interpret and apply the law passed by UK Parliament -> Certain and flexible becuz of tools of departure and PS 1966 -> Donoghue v Stevenson : established modern concept of negligence and thereby developed the case law in tort law -> Professor Zander: judicial precedents in CJS contribute to the development of common law 48 .3 Uphold Human Rights 1 -> Protect and enforce the people’s rights and freedom by following HRA 1998 -> Balance the state’s interest and people’s rights via JR -> Campbell v MGN : balanced privacy rights against freedom of expression to show CJS’ role in preserving human rights 2. Cons of CJS 2.1 Complexity, Costly and Delay -> Page 64 -> Professor Zuckerman: procedural complexities = hard for litigants to pursue legal claims -> Barker v Corus : showed prolonged litigation which led to increased legal expenses and delays .2 Adversarial Process 2 -> Technical as the lawyers play a more proactive role in starting a legal claim -> Lawyers play tricks in oral evidence so / slow down proceeding and increase cost to call witnesses -> “England’s Reform to Alleviate Probs of Civil Process”: CJS’s adversarial nature causes a focus on winning instead of seeking the truth .3 Judicial Activism 2 -> Judges / more power to interpret and apply a law to a case creatively -> Judges overstep SOP by creating judge-made laws so X democratic as judges = unelected body -> Professor Arthur’s “Judicial Activism: The Good, the Bad and the Ugly”: judges who engage in their self-made laws / blur SOP and make the law unpredictable 49 3. Why Small Claim Track is so Popular(Under £10,000 claim) 3.1 Time-saving -> Solve a private dispute in a judge’s chamber via hearing within one day or even 30 mins -> Avoid unnecessary delays as judges / address the simple legal issues without wasting time -> UK Judiciary: small claim track progresses more smoothly and effectively so judges / handle more claims .2 Cost-Effective 3 -> Court fees for small claims = lower so/ make it more affordable choice to resolve disputes -> Litigants / save money by representing themselves due to its simplistic procedures -> Council of Europe: small claim track enhances efficiency and cost-effectiveness of access to justice .3 Informal & Simple Proceeding 3 -> Small claim track = user-friendly with less emphasis on stern legal formalities and technicalities -> Encourages litigants to pursue a claim without worrying about the complex processes -> Professor John Baldwin: informality and simplicity of small claim track = important factors that lead to its popularity Con: 1. Comment 2. Hope 3. Quote: "Access to justice = more than access to courts; it = access to solutions." –Lord Neuberger, former President of the United Kingdom Supreme Court 50 0 Critically analyse the context in which ADR 1 operates and its non-enforceability. Intro: 1. Quote: “Litigation = luxury; ADR = necessity.” -Lord Briggs, UKSC Justice 2. This essay question necessitates... 3. First and foremost, we would... 4. How ADR operates -arbitration, mediation, conciliation, ombudsman and ADR orders Non-enforceability -lack of legal expertise, X system of precedent and lack of enforceability 5. Some argue... whereas some argue... 6. Criticisms of CJS -> Complexity, costly and delay -> X All probs / solved via traditional court trials as X always = best to solve disputes so / use ADR Body: 1. How ADR Operates 1.1 Arbitration -> Under Arbitration Act 1996 -> Professor Margaret’s “Principles and Practice of International Commercial Arbitration”: discussed the effectiveness and binding nature of arbitration in providing a final ADR 1.2 Mediation 1.2.1 Divorce cases -> attend MIAM in cases of financial disputes and children’s well-being without publicity -> Statistic: 4/10 couples reach agreement when attending MIAM -> Harvard Law Review: mediation = effective to settle complicated disputes via its practical applications 51 .3 Conciliation 1 -> Governed under Advisory Conciliation and Arbitration Service[ACAS] -> Conciliators analyse the parties’ strengths and weaknesses to give the best solution -> Statistic: 2/3 cases = successful -> Irish Law Reform Commission: explores effective role of conciliation in easing mutual agreements .4 Ombudsmen 1 -> Peter Fenn’s “Ombudsman”: discussed and highlighted the history of ombudsman in providing an independent platform for ADR -> Financial Ombudsman Service[FOS]: as an example of efficient ombudsmen in solving consumer disputes .5 ADR Orders in Commercial Courts 1 -> Parties / try ADR by communicating and suggesting early settlements -> If failed, / explain and court / hear -> Statistic: 52% cases / solved 2. Non-Enforceability 2.1 Lack of Legal Expertise -> X Lawyers so X legal representative and LIPS trouble the court -> X Experts in mediation and conciliation so / lead to wrong decisions and injustice -> Carmine Article: X fully consider legal principles like court trials .2 X System of Precedents 2 -> X Consistent, predictable and efficient -> Advice Services Alliance: ADR = private and X contribute to precedents to predict the inconsistent outcomes 52 .3 Lack of Enforceability 2 -> ResearchGate: weaken the effectiveness of ADR as an alternative when X ensure compliance with agreed decisions -> Calkins Law Article: when one party X comply, / further legal action to enforce Con: 1. Comment 2. Hope 3. Quote: "The beauty of ADR is its flexibility but its curse is the absence of binding precedent to guide future disputes." –Lord Neuberger, former UKSC President
