History of the Common Law

The phrase alternative dispute resolution, also known as ‘ADR’ essentially is a range of ways to avoid full scale litigation. Access to justice is a fundamental right and is protected under Article 6 European Convention of Human Rights, therefore, if society is to operate effectively there must a way of ensuring that disputes between individuals can be resolved. Importantly, this does not necessarily have to involve going to court. There have always been alternatives to court, the best known is probably negotiation reached through a compromise.

It was following the 1996 Woolf Report that ADR began to be more encouraged within civil justice. Since the mid-19th century there have been 60 or so reports into the problems within the civil justice system. Lord Woolf identified four main problems with the civil justice system: cost, delay complexity and the adversarial process. As one lawyer described them, cost, delay and complexity are ‘The unholy trinity of consequences which flow once a lawyer gets hold of a dispute.

’ In 1994, before the reforms were implemented High Court cases on average took 163 weeks in London and 189 weeks elsewhere in the country to progress through the court system and the majority of this time was how long it took for the actual case to start; 123 wks in London and 148 weeks elsewhere. Woolf concluded: “Delay is an additional source of stress to parties who have already suffered damage. ” Along with the Woolf Report there were a number of other reports in the 1990s such as the 1997 Middleton Report which concluded that a move away from the complex adversarial system and towards ADR was best.

The reforms which followed heavily encouraged ADR as a means of avoiding these problems. The idea was that by removing power from the lawyers and putting cases more in control of the judge, this would ultimately reduce cost and time. The Civil Procedure Rules and the Access to Justice Act 1999 both encouraged the use of ADR. There are four main types of ADR: negotiation, mediation, conciliation, arbitration and furthermore, tribunals are also an alternative to court.

Negotiation, this is where no third party apart from maybe a lawyer talk of my negotiation game skills, what it taught me, what it was like to have lawyers there and what types of issues were discussed. Mainly prices of a contract, terms of a contract. There can be a formal negotiation or informal negotiation; both involve one party taking the initiative to resolve the situation themselves. It is private, is often the quickest and simplest way of settling a dispute and it is very cost effective.

However, this form of ADR only works where the parties have an already good relationship and are willing and able to sit together and come to an agreement. There is an option to consult a lawyer but in some ways this kind of defeats the point of seeking ADR in the first place. What does tend to happen is that often, when a lawyer is consulted and asked to represent someone they which ask whether there is an already good relationship there and if there is a possibility to settle out of court and seek private negotiations.

Mediation, this is where a third party, mediator helps the parties come to a resolution. On the scale of formality for ADR this is probably the next step-up from negotiation.. The mediator acts as a go-between trying to see what each party wants and then compromise between these wants. Like all forms of ADR this is a confidential arrangement. This is one reason why it is appealing for big businesses. Formal mediation is where a panel of three are appointed, one form each side and a third neutral party. Each party makes a submission stating what the problem is and what they want.

The panel then decides and delivers s suggestion. The benefit of this is that it is like a trail so people feel vindicated, but it is quicker and cheaper. Although the decision is not legally binding as in it cannot be enforced with the threat of arrest, it ensures that relationships remain intact and that people can carry on doing business with each other. The Centre for Dispute Resolution is a mediation service which facilitates mediation and rents mediators for the occasion. The average cost is ? 1000-1500.

This is a major difference from the average cost of a civil cases which is ? 100,000. There are also various government mediation projects: ADR project is run by the National Family Mediation and is funded by the Department of Health. Mediation plays a significant role in divorce proceedings as the trend is a movement away from court intervention in matrimonial matters and the Family Law Act 1996 encourages and requires mediation to occur especially where children and financial matters are concerned as the courts would take too long to resolve such matters.

Section 29 Family Law Act 1996 requires divorcing or separating couples who are eligible for legal aid and who are in dispute relating to children to attend an interview with a mediator before their claim for legal aid will even be considered. In 2006 the Community Legal Service Consultation Paper stated in relation to family law matters: “…we estimate that there might be up to 60 per cent of the current court caseload that need not and should not really be there…Courts are not possibly and best equipped to deal with the emotional and practical problems being brought before them.

” Conciliation is similar to mediation however the main difference is that the conciliator gets more involved than the mediator and is expected to make suggestions for a compromise rather than just sit back and wait to hear what the parties propose. Arbitration, this is where both parties voluntarily agree to let their dispute be left to the judgment of an arbitrator or a panel of arbitrators who are neutral. Agreements to arbitration are governed by the Arbitration Act 1996 and are usually in writing.

The parties agree the procedure for hearings and this can ranger from ‘paper’ hearings to formal court-like hearings. The decisions reached are binding on the parties and can be enforced by the courts if necessary. The judgment of the arbitrator is called an ‘award’ and this can be challenged by the courts for serious irregularity in the proceedings or on a point of law. Arbitration is generally used by people who are in a contractual relationship, usually where there is a disagreement as to the price, terms of the contract or where one party fails to perform their obligations under the contract.

Arbitration Act 1996 S1: states the general principles governing arbitration (a) The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense. (b) The parties should be free to agree how their disputes are resolved, subject only to safeguards as are necessary in the public interest (c) The court should not intervene except as the Act provides… The Act applies only to written arbitration agreements but the way that the proceedings progress is up to the parties to decide.

Scott v Avery in most commercial contracts, there is a clause called a Scott v Avery clause which states that in the event of a breakdown between the parties the dispute will be settled by arbitration. What this means is that if a party tries to ignore this clause and take the case to court the other part can apply for an order under Arbitration Act 1996 s9 to prevent this. This forces the parties to make use of the ADRs but only when the parties have agreed to this beforehand.

The decision of the arbitrator is known as the ‘award’ and this may require one party to pay money to the other or may require one party to perform a specific obligation under the contract which they have been avoiding and this award is binding on both parties. This is one of the major strengths of arbitration as not all decisions in ADR are binding on the parties, they can merely be advisory. Finally tribunals, are an alternative to court but unlike other forms of ADR tribunals are compulsory in certain situations eg. employment issues.

Therefore, tribunals are not so much an alternative to court but rather the only way of resolving welfare issues. In conclusion, on the whole the promotion of ADR is positive because it avoids the adversarial nature of the civil law system which means that relationships remain intact. It also reduces cost, delay and complexity, the main problems with the civil justice system. Furthermore, ADR also gives people who are intimidated by the formal court system, or the expense, a chance at receiving justice. (b)

Consider the extent to which the reforms made to the civil justice system have improved the administration of civil justice in England and Wales. – 11 marks To a large extent the reforms introduced by the Access to Justice Act 1999 have improved the administration of civil justice in England and Wales. However, some problems are unavoidable and therefore the system can never be perfect. Civil cases cover a wide range of matters, a basic definition for civil claim is to say that these arise when an individual or business believes that their rights have been breached in some way. Some of the main areas of civil law are contract, tort, family, and employment law.

Taking a civil court could be very expensive even if you decide to do it yourself without using a lawyer. There will be a court fee based on the type and size of the claim which can be claimed back from the other party if you win the case, but if you lose you have to pay the other side’s costs. This was certainly one problem identified by Lord Woolf in his 1996 Access to Justice Report. Major changes have been made to the civil justice system in recent years. After the Civil Justice Review of 1988, reforms were made by the Courts and Legal Services Act 1990.

Criticism continued and the Conservative government appointed Lord Woolf to carry-out an in depth review of civil justice. Lord Woolf’s inquiry was the 63 review in a hundred years. His recommendations for change were published in the Access to Justice Act with his main aim to reduce the cost, delay and complexity of civil cases. These three main problems have become known as the ‘unholy trinity of consequences’. Lord Woolf believed that a civil justice system should be fair in the results it produces, and both the people that are making the claim and the D should be treated equally, regardless of who has more money.

He believed that the existing system was unequal with the claimant and the D starting off on unequal footing. He also criticised the existing system for being uncertain, and not user friendly. He felt that there was a need to ensure that the system was understandable to all its users, and provide certainty as far as possible. Furthermore he said that not all cases needed to go to court, he believed a just civil justice system should find other alternatives to courts and these alternatives should be at a reasonable cost, especially because of the slowness of cases reaching to court which often meant extensive delays and problems of cost.

The civil justice system was reformed in 1999 following the Woolf Report. The Woolf Report led to the most important reforms to the civil justice system for the whole of the twentieth century and the importance of these reforms cannot be over stated. In 1999 new Civil Procedure Rules came into force. The administration of civil justice was to be changed in a number of ways including: a track system to deal separately with complex and high value cases, simplification of terminology and procedure such as the introduction of one, single, claim form, judges to be case managers as well as the promotion of alternative dispute resolution (ADR).

This was an important attempt to reduce the time it takes to have justice done. The over riding objective of the Civil Procedure Rules is to enable the courts to deal with cases justly. This means that the courts should try to ensure that the parties in any case are on an equal footing, they should both understand the court procedures and the system effectively. The system should try to save expenses by encouraging alternative dispute resolutions. Time spent on any case should be proportionate to the amount that is involved, the importance of the case and the complexity of the case; these will all help to avoid delay and unnecessary expenses.

Finally that the case is dealt with quickly and fairly. Lord Woolf’s recommendations being accepted have made several changes in the Civil Court/Justice system. Judges now have much more control over cases. Judges can now set timetables and make sure that the parties do not drag out a case unnecessarily. Judges can also now identify issues at an earlier stage, allowing them to decide which issues need investigation and trial. The judge can also decide on what issues can be decided upon without having to call the parties into court, and give directions to ensure that the trial of a case proceeds quickly and efficiently.

As judges now have much more control over cases they are able to make more use of alternative dispute resolutions, which saves both the court and the court user’s time and money. 27% of cases in 2000 were dealt with via mediation, as the judges have stayed many more cases. Judges are also ensuring that both parties stick within the timetables strictly as in the case of Marks and Spencer 2000. Therefore, the changes introduced to the civil justice system have improved the system.

However, the high number of out-of-court settlements creates injustice, as the parties are not usually equal and one of them will often try to bully the other party into accepting an unfair deal. In 2007 the government announced that it no longer intended to raise the small claims limit and this has caused many to suggest that people will turn to claiming for compensation rather than settling a dispute through ADR. Professor Zander has strongly criticised Lord Woolf’s reforms, stating that they would not reduce delay and expense.

In conclusion, the reforms to the civil justice system have gone some way in improving the system. Perhaps more time is needed to see how such reforms will be shaped in the future. Question 2 (a) Outline the development of common law and equity. – 14 marks Before the Norman Conquest in 1066 there was no united English legal System. Laws were based on customs. The laws of the country were sets of customary rules which differed from area to area. The customary rules were based on the rules of previous invaders who had settled there.

In the north of England, Dane Law applied, in the Midlands, Merican Law applied and in the South and West of England Wessex Law applied. William I’s invasion sparked the start of law as we know it today. In order to create a law that was common to all of England, William I first made himself owner of all land. Meaning that whatever happened on any piece of land immediately involved him. He then allowed people to apply to him directly using a writ to have their disputes settled. Petitioners would complete a writ outlining their complaint and then send it to Westminster.

Cases were heard by the King and his advisors in the Curia Regis. Curia Regis, is Latin for ‘in the presence of the King’ but in actual fact it was the name given to the King’s court. Consequently, the King became known as the ‘Fountain of Justice. ’ However, the writ system was very slow and not all people could afford the journey to Westminster. Furthermore, the writ process was restrictive as it did not apply to all issues and its remedies were limited. William I appointed Itinerant justices (judges) to travel around the country to hear and solve disputes, and make decisions in his name.

It was hoped that this would speed up the process and extend justice to all of England. In order to create a law that was common to all of the country the itinerant justices had to complete a process known today as sifting. As the decisions that the judges made were often based on the local customs of that area and not all local customs could be accepted as Law and it was up to the judges to decide what they would count as law and what custom could be disregarded. A four stage test was devised: 1. “The custom must have existed since time immemorial’ 2.

“The custom must have been exercised peaceably, openly and as of right” 3. “The custom must be definite as to locality, nature and scope” 4. “The custom must be reasonable” These justices would then return to Westminster and discuss the different customs that they had seen. Justices would accept the reasonable customs as law and reject the unreasonable ones, the accepted customs would then be a part of the Laws of the country that would apply all over England. The sifting process was important as it enabled the law of England to be certain and consistent by creating a system of precedent.

Judges came to follow the principle of stare decisis and by about 1250 England could be said to have a common law. The common law however was not perfect. The common law was criticised for being too fixed. This rigidity meant that some people were denied access to justice as only certain cases could be heard in the Kings Courtl; if your case did not fall under one of the existing categories there was no way you could bring your case to the Common Law court. Moreover, the remedies available were not always adequate.

If a litigant had been promised the chance to buy a particular piece of land, and the seller went on to sell it damages would not always be suitable. Litigants began to campaign for specific performance. Equity therefore, developed in order to fill in the gaps left by the common law. Where the common law failed equity prevailed. The development of the system of equity was fairly informal. Ordinary people who could not be helped by the common law found that their petitions were sent to the Chancellor. To save time people began to directly petition the Chancellor.

The Chancellor would decide the cases he was sent according to his own conscience. Consequently, the term equity means fairness and the Chancellor became known as the ‘Keeper of the King’s Conscience. ’ Due to the number of cases he was dealing with and the fact that he was making decisions on his own authority, a new court was created, this was the ‘Court of Chancery. ’ So whenever the Common Law was unable to offer a remedy, the Chancellor would intervene. He would make a decision based in his own moral view; he did not have to follow any rules.

He was allowed to make decisions based on what he thought was fair. Equity therefore is the ‘Gloss on the common law,’ and is affectionately known as ‘Common law’s safety valve. ’ This was obviously not consistent with the principles of Common Law, as there was too much flexibility and everything was dependent too much on the Chancellor’s opinion. It has been said that: “Equity varied with the length of the chancellor’s foot” However there were many more problems to come as the common lawyers resented the way in which equity could be used to restrict their own jurisdiction.

They argued that because of its flexible approach, the chancery’s decisions lacked consistency while the chancery lawyers argued that the common law was inflexible that it was unfair. The dispute between the two systems were eventually resolved as a result of the Earl of Oxford’s case 1616. Where it was decided that in the event of a clash equity would win. Although a number of statutes had paved the way for the administration of the two systems to be fused, it was as a result of the Judicature Acts 1873 – 1875 that the court systems were eventually combined.

The rules of the two system, however, remains distinct, each with its own principles. It has been said that ‘the two streams have met and now run in the same channel but their waters do not mix. ’ In conclusion, the development of the systems of common law and equity has been a slow and gradual process. The principles have and no doubt will continue to develop organically over time. (b) Consider the impact of modern equity upon the existing common law. – 11 marks Historically the development of equity was extremely important as it filled in the gaps left by the common law.

In modern times equity still has an important role to play as many of our legal concepts have stemmed from equitable principles and in this sense continues to have an impact on the common law by giving it a sense of ‘fairness’. In order to understand the extent to which modern equity has impacted on the common law it is first necessary to understand how modern equity has developed. A reminder that equity means fairness and therefore in order for the law to be fair a number of rules, or equitable maxims as they are known have developed over time. The first of which is that ‘he who claims equity must come with clean hands’.

This means that the person asking for equity must have acted fairly himself. This point is illustrated through the case D&C Builder’s v Rees (1966). In this case D&C did some work on the house for a couple named Rees. The bill came to ? 732 and Rees had already paid ? 250 but there was an outstanding payment of ? 482. Rees said they were not happy with the work- they knew the builders were in financial trouble so said we will only pay ? 300. The builders accepted. Under contract law the decision to accept less money would not really be acceptable, and the Rees’s would have been obliged to pay the money back if the builders asked for.

However under the equitable principle of Equitable Estoppel, the courts can say that a promise is valid even if another part of the law says it is not. Importantly, in this case Lord Denning said he would not apply the equitable principle because the Rees’s had tried to take advantage of the fact that the builders were in financial difficulties. In other words they had not come with ‘clean hands’. A second equitable maxim is ‘he who seeks equity must do equity’. Essentially this means that he who is seeking equity must also be prepared to act fairly towards their opponent. The case of Chappel v Times Newspapers Ltd (1975) makes this point.

In the case workers of a newspaper went on strike and the employers said they would sack those that were on strike. The workers applied for the equitable remedy of Injunction – they asked the court to order the employers not to sack them. The court said they would grant this injunction but only if the workers stopped the strike. They refused to do this, so they were not granted an injunction. The third maxim is that ‘delay defeats equity’, this means that when a claimant takes an unreasonably long time to bring an action, equitable remedies will not be available such as in Leaf v International Galleries (1950).

Here the claimant bought a painting after he had been told that it was a genuine piece of work by the painter, so worth a great deal of money. However, 5 years later he discovered that it was nothing of the sort, and was actually worth nothing. He tried claimed the equitable remedy of Recission – to put him back in the position that he had been before he had bought the painting, so in this case give him back the money he had paid. The court held that this was not possible because it had been a very long time since the time he had bought the painting.

Therefore equitable principles have meant that the law is neither too rigid (a complaint made about the common law) or too flexible. Equitable remedies have also had a major impact on the common law. Equitable remedies are discretionary; a claimant who wins any case will have the automatic right to a common law remedy but it will be up to the court to decide whether or not to grant an equitable remedy. The court uses the maxims to help them decide.

The different types of equitable remedies are: Injunctions – orders the D to do or not to do something, Rectification – this is where the court changes the words of the contract so that both parties know exactly what they are agreeing to, Specific Performance – This compels a party to fulfil an agreement and Recission – this restores the parties to the position they were in before the contract was signed. Such remedies ensure that justice can prevail as the previous remedies under the common law were often inadequate.

Equitable rights, interests and remedies remain important in law today. Concepts such as mortgages and trusts are founded on the idea that one persons own the legal interest in property but has to use that property for the benefit of another. This other person is said to have an equitable interest in the property. It would be difficult to imagine life without such concepts. This sentiment has been uttered by Lord Denning who in the High Trees case 1950 developed the new equitable principle of Promissory Estoppel which introduced an element of fairness in contract law.

Estoppel is a rule of that prevents a person from going back on a promise not to enforce their rights under a contract. Although in the early stages of its development equity retained its flexibility and was able to create new principles of justice where they were needed, by the middle of the 17th century the judges began more and more to follow the decisions of their predecessors and by the end of that century there was a marked attempt to reduce equity to a more fixed system. Equity was now creating a system of precedent like the Common Law.

The fixing of the principles of equity continued and by 1948, the Court of Appeal was saying in the case of Re Diplock, that any claim in equity: ‘……. Must be shown to have an ancestry founded in history and in the practice and precedents of the court administering equity jurisdiction. ” In conclusion, although the modern system of equity has to some extent had a huge impact on common law, in another sense equity and common law have over time become quite similar. Therefore, it could be argued that it is the common law that has had the biggest impact on the modern system of equity.

Question 6 (a) Outline the role of juries in civil and criminal cases. – 14 marks The jury has been used in the legal system for over 1000 years and it has fulfilled both a symbolic and a practical role as a tool for resisting the oppressive rule of the monarch or the government. The Magna Carta 1215 recognised the right of trial by one’s peers and thus juries became replaced the old mode of trial, ordeal. The Bill of Rights 1689 asserted the right to jury trial as an ‘ancient liberty’. Lord Devlin wrote about the jury that: “it is the lamp that shows that freedom lives.

” A jury is a body of people who are chosen randomly to decide the truth of factual evidence in legal proceedings and on instruction of the court, to apply the law to the facts. Juries are used in both criminal and civil cases and have separate roles in both. Originally, the jury was used only in local courts and in civil cases but by the 15th Century, juries had become independent assessors. The role of the jury in modern terms is to decide a case on fact. The jury is a completely independent institution and its independence was confirmed in the Bushell’s case (1670).

Here the trial judge did not want to accept the not guilty verdict and asked the jurors to reconsider without food or drink. The case established that jurors should decide cases according to their consciences and that they could not be punished for returning a verdict contrary to the evidence or the judge’s direction. This point was made further in the case of R v McKenna (1960) which confirmed that no pressure should be placed on a jury to reach a verdict. Juries are used in a number of courts to hear both criminal and civil cases.

They are used in: Crown court for criminal trials on indictment, High court, Queen’s Bench Division for cases such as personal injury and fraud, County Court for similar cases to the QBD and they are also used in the Coroner’s Courts to hear cases concerning death in prison, death in police custody, death where health and safety is concerned and death due to industrial accident. The size and the role of the jury differs depending on the court and the case. In criminal cases the jury is made up of 12 people.

This number was tested in a case when a deaf jury member was not allowed to participate as he required a 13th person to perform sign language. In the county Court 8 people are on jury panel and in the Coroner’s court the jury panel can vary between 7- 11 people. Only 1% of Civil Cases are tried by ‘Jury’. The jury is used in very rare circumstances for civil matters and where they are used they have a dual role. They decide whether the claimant has proved his case or not and then once they have decided is the claimant has ‘won’ they will decide what amount of damages they should be awarded.

Under the Supreme Court Act 1981 it was set out that a jury trial can only be guaranteed where the case falls under 1 of the following 4 types of cases: Defamation False imprisonment Malicious prosecution Fraud All these cases involve character and reputation and so it is for this reason that the jury is used: because they are ordinary people, it is felt that they are the best judges as to whether someone’s reputation has been damaged in a case of say slander.

But the judge may refuse to allow jury trial in some of these cases as there are important and complicated documents and sometimes scientific evidence which may be too technical for the jury. It is felt that that the use of the jury in questions of fraud and defamation is out of date as they often set the damages too high and do not appreciate the complexity of the issues at stake. In the case of Grobbelaar v News Group Newspaper (2002)The House of Lords awarded the goalkeeper just ?

1 damages after he sued for defamation after match fixing allegations were printed in a national newspaper. The HOL refused to interfere with the decision of the jury on the finding of facts, that there was defamation. The reason for why jury trial has been reduced in civil cases is because jurors are made responsible for deciding on how much damages should be awarded to the claimant, and most jurors tend to be excessive in their award. Further jurors do not need to follow previous cases which makes it very difficult for lawyers to advise their clients.

For this reason since 1990 it has been accepted that the COA can order new trials or substitute sums when they feel that damages were excessive. The use of juries in personal injury is rarely allowed as the cases involve assessing compensatory damages which can be complicated, however, in exceptional circumstances a jury might be allowed. In Singh v London Underground a request for a jury to try a personal injury case resulting from the King’s Cro