#14629 - Dispute Resolution - GDL English Legal System

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Paying for legal services

• As well as there being inadequate funding, people don't realise what rights they have

Historical development:

• 1949: first state-funded legal aid scheme

• Now administered by Legal Aid Agency, under control of MoJ

• Legal Aid, Sentencing and Punishment of Offenders Act 2012 drastically cut legal aid

Subject area:

• Must be listed in Schedule 1 of Legal Aid Act 2012

• Civil legal aid basically all gone:

  • life or liberty must be at stake

    • In these cases funding is provided for mediation rather than a case

  • Civil areas covered: environmental law, asylum, mental health and child welfare and judicial review

  • Actually contravenes Art. 47 of European Charter of Fundamental Rights (calling for member states to provide civil legal aid to those without means)

• Civil Legal Advice - national telephone service providing free legal advice

• Criminal Defence Direct - free telephone advice for people detained by police for non-imprisonable offences (rather than paying to call a solicitor)

• Criminal legal aid:

  • Means test reintroduced for Crown Court cases in 2010

  • Public defenders - directly employed by the Legal Aid Agency

    • Hugely criticised by Bar Council & Crim. Solicitors Assoc; says it prefers administrative convenience to justice; not independent enough from the government

    • Strangely more expensive than private practice at the moment

  • No legal aid for defamation

• Where legal aid is unavailable to a client who cannot afford representation, it might amount to a breach of Art. 6 Convention rights

  • McLibel Two case: Steel v United Kingdom 2005: activists distributing leaflets outside McDonald's sued and denied legal aid (not available for defamation). Ordered to pay 60,000 (later 40,000) in damages. ECtHR upheld challenge against fairness saying English court had breached Art. 6 as well as breech of freedom of expression under Art. 10

Alternative funding:

• Conditional fee arrangements (no win no fee)

  • ‘Uplift’ if case is successful

  • Naomi Campbell used a huge conditional fee arrangement to sue the Mirror for defamation (conditional fee arrangements not means tested)

  • Historically, if you were awarded costs then the other side pays the higher 'win' rate

    • Extra cost for losing party is perhaps excessive

    • Legal Aid, Sentencing & Punishment of Offenders Act 2012 has limited CFA’s application

      • Fee uplift is now paid by the claimant

      • Cap of 25% success fee for personal injury

        • Motto v Trafigura 2011 – 100% success fee was reduced to 58%

• Contingency fees

  • lawyers would receive a share of the successful claimant's award of damages (lawyer receives nothing if they lose)

  • Unlawful before 2012

  • Qualified one-way cost-shifting rule QOCS – if D loses, he pays C’s costs, but is C loses, they pay their own costs

Third party funding:

• Some investors agree to back litigation costs (for cases in which they have no interest) on the agreement that they receive some of the damages

  • Only legal if third party clearly are not interfering with the litigation

Class actions:

• Multiple claimants for the same issue

• Much harder to bring than in US

Lord Carter report 2006:

• Recommended price-competitive tendering i.e. giving lots of legal aid cases to large law firms in one contract

• Recommended paying by case not by hour

• Coalition implemented this in 2014

The criminal trial process

• Adversarial process: each side responsible for putting their own case

  • Alternative is inquisitorial system typical in Europe, where the judge plays the dominant role in evidence collection

• Criminal Procedure Rules 2005: strong emphasis on case management from the judge

  • Updated twice a year by Rules Committee

  • R v Clarke and McDaid 2008: appeal against conviction allowed where there has been a breach of a technical procedure which does not amount to meaningless formality

Prosecution:

• Crown Prosecution Service (CPS) started 1986 to take prosecutions away from police

  • Run by Director of Public Prosecutions (DPP)

  • Annual report made to Attorney General

  • Split into Criminal Justice Unit for straightforward cases

  • & Central Casework for more complex cases

  • CPS prosecutors carry out advocacy themselves in Crown Court: known as associate prosecutors

  • Criminal Justice Act 2003: moved decision whether to charge from police to CPS

  • CPS decisions based on the Code for Crown Prosecutors (comes down to 'realistic prospect of conviction')

  • Also takes into account public interest

• Prosecution of Offences Act 1985 S. 6 allows private prosecutions

  • PC Joy against MP motor offender

  • BUT DPP may choose to take over the case then discontinue it - it is the right to start a prosecution more than the right to continue

    • R (on the application of Gujra) v Crown Prosecution Service 2012: private prosecution taken over by CPS when felt there was a reasonable chance of success

• Certain offences can only be brought with consent of AG or DPP

  • e.g. assisted suicide prosections (Debbie Purdy v DPP)

  • AG has power to stop proceedings that would be brought before the Crown Court (nolle prosequi)

    • Justice Richard Gee trial: accused of 1m fraud & his trial was stopped by DPP entering a nolle prosequi

Trial process:

• Summons calls person charged with an offence to court

• Where maximum penalty is less than 3 months can plead guilty by post

• Summary offences:

  • minor crimes triable summarily in magistrates court

• Indictable offences:

  • More serious offences that can only be heard in Crown Court (e.g. rape and murder).

  • Indictment document contains alleged offences supported by brief facts

  • Only appear before magistrates once in a ‘sending for trial’ hearing & then sent to Crown Court

• Triable either way:

  • Defendant's discretion, and if they don't mind then magistrates decide (eg theft and burglary)

  • Most defendants want a jury trial in crown court

  • Plea given before mode of trial decision

• Plea & case management hearings

  • Arraignement = process of pleading during the case management hearing

    • Guilty – judge will sentence

    • Not guilty:

      • Defence only has to provide its intended points of law (not all its evidence)

      • Defence must also give prosecution the names of witnesses and experts to be consulted

      • Any other info required to organise trial

Plea bargaining:

• R v Turner 1970: judges were not allowed to get involved with plea bargaining which effectively put a ban on it

• R v Goodyear 2005: dramatic end to ban on plea bargaining. Defendant can seek indication of their likely sentence if they plead guilty from judge

• Fear that plea bargaining encourages innocent people to plead guilty

Evidence:

• Judge can draw jury's attention to important facts and direct them; but jury must decide the facts

• Evidence of bad character and previous convictions more widely admissible following Criminal Justice Act 2003 (having been previously only used for sentencing)

  • Could undermine presumption of innocence

• Queen's evidence: giving evidence against others in exchange for a reduced sentence

• Television cameras allowed in Supreme Court

• Further provisions in Crime and Courts Act 2013 to open it further – e.g. opening and closing arguments in the Court of Appeal

DPAs:

• Crime and Courts Act 2013: Deferred Prosecution Agreements (DPAs)

• Under a DPA a prosecutor charges a company with a criminal offence but proceedings are automatically suspended.

• The company agrees to a number of conditions, such as paying a financial penalty, paying compensation and co-operating with future prosecutions of individuals. If the company does not honour the conditions, the prosecution may resume.

• DPAs can be used for fraud, bribery and other economic crime. They apply to organisations, not individuals.

• A DPA could be appropriate where the public interest is not best served by mounting a prosecution. Entering into a DPA will be a transparent public event and the process will be supervised by a judge.

• Allows prosecution to negotiate with a defendant company accused of an economic crime to levy a fine instead of going through a trial

The civil justice system

Burden of proof:

• Claimant must prove his case on a balance of probabilities

Courts:

• County courts hear exclusively civil work

• High Court: Family, Queen's Bench and Chancery

  • QB handles contract and tort cases unsuitable for county courts

• Head of Civil Justice: Lord Phillips

Reform:

• Lord Woolf, Access to Justice report published 1996

  • Most recommendations implemented by April 1999 when Civil Procedure Rules 1988 came into force

  • Main aims to increase

    • Justice

    • Speed

    • Cost-effectiveness

Woolf’s procedural reform:

1. Before proceedings commence claimants should send a letter to defendants warning

2. Proceedings brought within 6 years of harm

3. Almost all proceedings start with claim form (replaces writ and summonses)

   1. Non-personal injury claims for over 25,000 started in HC

   2. Personal injury claims for over 50,000 started in HC

4. Claim form is served on defendant who has 14 days to respond

5. Defendant either files acknowledgement of service or defence with the court

6. If defendant files a defence, an allocation questionnaire sent out by court to decide which track (small claims track, fast-track or multi-track) case will follow

7. Next step: disclosure proceedings: each party can submit 'request for information' to other

8. 'Without prejudice' negotiations allowed throughout to encourage agreement

9. Defendant can make Part 36 offer to settle at any time (offer then paid within 14 days)

10. If claimant eventually wins less than a Part 36 offer he will not receive costs...