English Legal Institutions and Methods - Assignment Example

ENGLISH LEGAL S AND METHODS A. What opportunities are there for funding and private funding arrangements to help with or meet the costs? Civil actions involve parties, and non-criminal disputes involving negligence, trespass, laws of succession, contract, family and employment law and civil disputes (Neumann, 1986). Additionally, every civil action undergoes pre-trial sessions before it goes to court. Funding rules have been introduced for civil actions in English laws which include public, private and state sponsored legal aid. Parties to civil actions need to consider rules before going for private or public funding. Firstly the parties need to get legal advice on - if to go to court or settle the case through negotiations. If the case is taken to court, the parties have to pay for legal representation in court and also ensure the way to represent in court. Most of the civil claims are resolved out of court through negotiation between parties without the need to go to court but if the case is produced before the court, the judge will decide how to move forward and there are civil appeal systems for parties to accept the outcome of trials (Baker, 2002). Civil disputes should be resolved through legal procedures between the parties and there are different advantages and disadvantages of taking different sources of advice. Negotiations - Majority of civil disputes are settled through negotiations where both the involved parties and their representatives try to come to a mutual agreement. Negotiation is the best solution because it prevents bad feeling and there is no loser or winner in the case. The costs of negotiation are low as no court representation is required and agreements are mostly flexible. But negotiations may sometimes be in favor of one of the dominating parties and hence, in such cases the other party has the option to go to court. Courts of first instance are County Court and High Court. For claims less than or equal to £15,000, cases are started in County court and for larger amount claims can be submitted to High Court but there are restrictions on personal injury cases and defamation cases. Solicitor - Solicitor is a legal professional who is legally qualified to provide the best source of advice and he/ she can negotiate on behalf of client to get a win in case. The fee of a solicitor includes hourly bill, conditional fee agreements where CFA without success fee and CFA with success fee is included. Hybrid fee and contingency fee is charged where a specific arrangements is made between the solicitors and clients. The expense also includes the legal expenses on insurance - Before the event insurance and after the event insurance. The costs include commercial funding which may come from third party agreements or percentages of damages recovered. Need for Funding In case of negotiation of the parties may have to settle against their wishes and parties wish to initiate or defend a legal action themselves (Baker, 2002). A solicitor is required to represent a client in court but it is probably the most expensive method of getting legal help and therefore, many parties involved in civil disputes rely on public funding or legal aid to find a solicitor. Opportunities for state funding and private funding arrangements to help with or meet the costs Private Funding Pro bono is the term used for the situations when the solicitors offers legal advise privately and the solicitor get payment for the services. Generally, the cost of solicitor is more than £150 per hour and therefore, this is not advisable option for many parties.3 Public Funding Public funding is provided through Community Legal Service for civil cases where “free funding” is “means tested” which means people having very low income are qualified for getting legal help through this method. Public funding is also dependent on the conditions whether the case has the potential to win or where there are more chances of gaining as compared to costs. Conditional Fee Agreement Conditional fee agreement are the “no win no fee agreement” introduced under Access to Justice Act 1998 to help parties to get a viable means for getting civil actions for personal injury cases where a person who cannot afford private funding or make an agreement with solicitor is provided with a solicitor. State Funding Rules State provides funding for people who fall within the limits to get legal aid. The upper income limit for legal aid varies from £3000 to £8000 and the person eligible for passported benefits can get all forms of legal aid and capital and income legal help.2 All clients who have receipt of passported benefits will be eligible to be passported on capital and income of all types of legal aids. New sections of Funding Code contain “interests of justice” and guidance to encourage mediation and no expansion of conditional free agreement has been included. B. In what ways do these public and private arrangements help or hinder ‘access to justice’? Advantages and Disadvantages of Public and Private Arrangements to Access Justice Private Funding The solicitor is aware of legal provisions and provides proper documents and guidance in a case but the expense of private funding can be very high and hiring a proficient solicitor does not ensure a win. Conditional Fee Agreement There are many conditions applicable for getting public funds for a civil dispute and it require payment privately or through a Conditional fee agreement which includes small claims below £5000 or the cases of negligence or personal injury. Since 2000, millions of personal injury claims have been made using CFA.6 In the “No win no fee” agreement, lawyer relies on the recovery to get fee and the lawyer need to arrange for risk management in case of a loss and the client requires to get insurance to pay in case the case is lost. The case is taken up by solicitor only if it has the potential to win. Section 58 allows under Court and Legal Service Act 1990 to pay for conditional fee where the lawyer gets nothing if the case is lost but they may get double the fee and cost, if the case is won. Even in Contingency fee arrangement there are prohibitions. In Bevan Asford v Geoff Yeandle case, 5 prohibitions on contingency fee were implied. Conditional fee agreement is mostly adopted in personal injury or housing disrepair cases where the defendants are judgment proof .1 Small Claims Track Depending on amount of claims and party initiating legal action themselves - a civil case is either taken to the Small Claims track, the Fast track or the Multi track. Small Claim track is for disputes under £5000, fast track is for straightforward disputes of claims which ranges between £5000 to £25,000, and Multi track cases are for claims amounting for more than £25,000. One of the informal ways to settle disputes is the small claim track for which legal funding is not availed where the parties are encouraged to represent their own case to keep the cost to a minimum (Twining, 2000). The judge in Small Claims track plays the major roles by asking important points to both the involved parties. The Law of Costs Once the judge is finalized, the party which loses has to pay the costs for other side 1 but the cost in case of small claims court cost for legal advice and representation is not recovered on winning a case. The court, claim and cost of witness are recovered in small claims court where the parties to civil actions wish to initiate or defend a legal action themselves (Bendix, 1978). Small claims track provides option for self representation which helps to bring down the legal costs and the cost of case but there are many disadvantages of small claims tracks, who do not get legal funding, and if the other side hires a solicitor for the case, the case becomes stronger (Luhmann, 1985). It has been observed the District judges are not helpful to unrepresented parties and if the party wins, the other side may not pay - generally in such case only 60% of claimant receive all the money awarded by the court. Civil procedure rules also contains provisions of “unreasonable behavior” where the judge may consider the behaviors of defending party was unreasonable because The defendants failed to attend the final hearing without explanation Pursue the case without proper evidences, Did not respond to the correspondence from court, Made dishonest claims, Failed to comply with orders of the court and gave evidences which contradicted with witness statements. Legal Aid Only the people of low income groups are eligible for getting the legal aid and one can achieve state funding only if he / she is eligible through the mentioned conditions.4 Most of the parties belonging to middle income group are not eligible for getting state funded legal aids (Hayek, 1976). Modification in Legal Aid rules has introduced relief to private funding and it also integrates the idea of providing legal aid as loan and the new modifications also involves eliminating high cost cases through the provision of legal aid. Legal aid is provided for private damage actions and it provides cost protection but grant of legal aid is a big issue (Bendix, 1978). Third party legal aid is a new concept, and matters arising due to business are excluded from legal aid provided through Access to Justice Act 1999. Third Party Funding Third Party funding is a new unexplored concept. Although third party funding may raise access to justice but it can be disastrous in some conditions. For example - In Arkin v Borchard Lines Ltd, it was completely unsuccessful and court of appeal considered it to be a “disastrous litigation” where Arkin lost and the claimant had no assets. References Baker, J.H. (2002). An Introduction to English Legal History, London Bendix, Reinhart (1978) Kings or People: Power and the Mandate to Rule, Berkeley: University of California Press Luhmann, Niklas (1985) Sociological Theories of Law, London: Routledge, Kegan & Paul Hayek, Friedrick (1976) The Constitution of Liberty, London: Routledge & Kegan Neumann, Franz (1986) The Rule of Law: Political Theory and the Legal System in Modern Society, Leamington Spa, England: Berg Twining, W. (2000) Globalisation and Legal Theory, CUP, Cambridge Endnotes 1. As many individual consumer claims will be under the small claims track limit they will benefit from the more user friendly procedure of this track in the County Court. However, winning cases with a simple procedure does not guarantee that the enforcement means available are satisfactory to recover damages and fees. See J Baldwin, Evaluating the Effectiveness of Enforcement Procedures in Undefended Claims in the Civil Courts, London: Lord Chancellors Department Research Series 3/03 (2003) 2. £108 to issue a case in the court; £35 for allocating money claims between £1500 and£5,000 (no fee below) and £300 for the hearing fee if the claim is over £3,000 (less below) i.e. to claim for, say, £4000 costs £443. 3. ‘The Council remains very concerned about the high level of fees, driven by the policy of full cost recovery’. Annual Report of the Civil Justice Council 2007 Section 1.11 4. Legal Aid Board, A New Approach to Funding Civil Cases (1999) paras 12.17 and 12.18. 5. Bevan Ashford (a firm) v Geoff Yeandle (Contractors) Ltd (in liq) ,1998,All England Reporter Publisher , [1998] All ER (D) 138 6. The insurance data (last quarter 2002) showed that CFAs accounts for approximately 30 per cent for road traffic accident cases and 75 per cent for both employers’ liability and public liability cases. For clinical negligence there is still only a small proportion of cases funded CFAs, perhaps 10%-20%. Applying those percentages would result in an approximate total of 1.42m for the period 2000/01 - 2003/04. Read More