a) Describe the jurisdiction of both the High Court and the County Court in civil cases, including the track system. [18 marks]
b) Discuss the advantages and disadvantages of the small claims track. [12 marks]
OCR G151 January 2010
a) The County Court and the High Court are the main trial courts for civil cases. The County Court hears cases involving contract, tort, partnerships, trusts, the recovery of land and inheritance up to £30,000. It also deals with personal injury cases providing the sum involved is less than £50,000.
The High Court is split into three divisions and each division hears particular types of cases. The Queen’s Bench Division hears cases involving contract and tort over £50,000 and some over £25,000 under the multi-track procedure. There are also a Commercial Court, an Admiralty Court and a Technology and Construction Court in this Division. The QBD also hears cases for judicial review. The Chancery Division hears cases involving insolvency, mortgages, trusts, property disputes, copyright and patents, intellectual property and probate disputes. The Family Division deals with cases under the Children Act 1989 and other family matters.
Civil cases are allocated to a particular track. This is dependent on the amount of money involved and the complexity of the case. Firstly, an allocation questionnaire is completed by both parties and the judge then decides which track is suitable.
The small claims track will be used for cases up to £5,000 (£1,000 for personal injury cases). This is informal and the District Judge should help the parties as the use of lawyers is discouraged.
The fast track will be used for cases from £5,000 to £25,000 and the hearing should last no more than a day and should be heard within 30 weeks from the case being set down for a hearing. Usually only one expert witness is allowed.
The multi-track will be used for cases over £25,000 or in cases involving complex points.
All tracks are usually heard in the County Court, only claims over £25,000 or very complex claims are heard in the High Court.
b) One advantage of the small claims procedure is that the costs involved are fairly low, especially if the claim is under £1,000, and if you lose you do not have to pay the costs of the other side. However, if you win there is no guarantee you will get your money from the other side as only about 60% of claimants actually receive the money awarded by the court.
The procedure is quicker than for other types of case – it should take less than a day. But the limit of £5,000 could be seen as a problem as this limit was set in 1999 and inflation erodes the number of situations that can be dealt with. Personal injury is a maximum of just £1,000, which seems very little today.
One disadvantage is that although lawyers are discouraged and legal funding is not available, businesses will often use a lawyer which can put an unrepresented individual at a disadvantage. The District Judge should help the individual in such cases and explain the case, but research suggests this is not always the case, leading to possible injustice.
a) Describe the different methods of Alternative Dispute Resolution available to deal with civil cases. [18 marks]
b) Discuss the advantages and disadvantages of using arbitration rather than using the courts. [12 marks]
OCR G151 June 2010
Before the more formal methods of ADR are used, parties will usually try negotiation where the parties reach an agreement themselves with no third party. They may act through solicitors if they are unable to negotiate in person.
The more formal methods of ADR include Mediation where a neutral person helps the parties to reach a compromise solution acting as a facilitator. The Mediator does not offer an opinion unless asked. A formalised settlement conference is another method of approaching mediation. This is like a mini trial but has no binding results. An example of when mediation is used is in family matters e.g. in divorce when sorting out financial arrangements. The Centre for Effective Dispute Resolution deals with companies and more local mediation services to deal with disputes between neighbours.
Conciliation is another method of ADR. This is similar to mediation; however the conciliator goes beyond mediation and takes on a more active role and has the power to suggest grounds for compromise or a settlement. Conciliation is often used in industrial disputes using ACAS in particular employment issues.
Both mediation and conciliation allow the parties to have control over the resolution process as they can withdraw at any time and a resolution to the dispute cannot be imposed on them as they must agree to it.
In arbitration, 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 arbitrate are governed by the Arbitration Act 1996 and are usually in writing. An agreement to go to arbitration can be made before a dispute arises, usually by a Scott v Avery clause in a contract. The agreement will either name an arbitrator or provide a method for choosing one. A court may also appoint an arbitrator. The parties will have to agree the procedure for the hearings and this can be either ‘paper’ arbitration or a formal court-like hearing. Unlike other methods of alternative dispute resolution the decision of the arbitrator, which is called an award, is binding on the parties and can be enforced by the courts if necessary. An award by an arbitrator can be challenged in the courts for serious irregularity in the proceedings or on a point of law. Examples of situations where arbitration is used include building contracts, holiday contracts and various other business contracts
One advantage of arbitration is that it costs less and takes less time than using the civil courts. Courts are well known, despite the introduction of the three-track system, for their long winded processes and the time it takes for the actual hearing to take place. This time adds to the overall costs. The vast majority of arbitration cases are solved within a very short time scale, often in just one hearing with both parties sharing the costs of the Arbitrator.
Another advantage of arbitration is that it is far more flexible than the courts. The parties can decide the time and place of the hearing to suit their needs and whether they want the hearing to be in writing or in person. In addition, it is held in private and is confidential rather than on public record which prevents any bad publicity. However, some may say that a disadvantage of arbitration is that big companies are able to cover up their failings which the public should know about.
A disadvantage of using arbitration is that if unexpected legal points crop up the arbitrator may not be able to fully take this into account due to lack of legal knowledge. However, many arbitrators are chosen due to their expert knowledge of the issue at hand which means a more appropriate decision will be made. It also means that, if appropriate, it would save the need for expert witnesses which makes a proceeding quicker.
Another disadvantage of arbitration is that there is no legal funding available. This means that in situations where an individual is up against a company, the company is likely to be able to afford legal representation, unlike the individual. This may severely disadvantage the other party. However, at the end of the proceedings, the losing party does not have to pay all the costs and the other party’s legal costs. However, it is to be noted that there is very limited legal funding for civil cases nowadays.
Chapter 6: The Legal Profession
a) Describe the education and training of solicitors and the different types of work which they undertake. [18 marks]
b) Discuss whether the lack of availability of training contracts is the main problem with the education and training of solicitors. [12 marks]
OCR G151 June 2010
a) Before embarking on the training to become a barrister, the academic qualifications have to be completed. These comprise a qualifying law degree which includes core subjects, for example, criminal law and public law. It is possible to qualify with any degree followed by the Common Professional Examination or the Graduate Diploma in Law which cover the core subjects in either one year full time, or two years part time. Competition for the vocational stage of training, the Bar Professional Training Course, means that a trainee barrister would need to gain at least a 2:1 in their degree to gain entry to the course.
Next the trainee must join one of the Inns of Court and dine 12 times or attend residential training courses.
They must also take the BPTC and this course involves practical training with an emphasis on case preparation, advocacy, and negotiation. They also work on interviewing skills and drafting opinions.
On completion of the BPTC, they are Called to the Bar and they may now call themselves a barrister.
If they want to practise as a barrister, they need to complete the practical stage of their training which involves a pupillage of two six-month periods with a pupil master where they gain experience under the guidance of an experienced barrister. They can take their own cases in the second six months of the pupillage and will hopefully gain a tenancy in chambers after that. There is also a programme of continuing education organised by the Bar
The educational requirement for solicitors is the same as that of barristers – qualifying law degree or CPE/GDL covering the core subjects.
The vocational stage of training involves completion of a one-year Legal Practice Course which includes dealing with clients, accounts, advocacy, interviewing, drafting documents and legal research.
After this, the practical stage involves gaining a two-year training contract with a solicitors’ office or other legal practice office, shadowing and working under supervision. They must work in three different departments.
On completion they will added to the Roll of Solicitors. Continuing education courses have to be attended after qualifying.
There is an alternative route for solicitors who can qualify as a Fellow of the Institute of Legal Executives which takes five years’ part-time study whilst working as a legal executive.
b) One of the problems with the training of both barristers and solicitors is the difficulty in finding a training contract or a pupillage as there are less than half the number of training contracts or pupillages compared with the number who pass the vocational stages, which prevents many from completing their training. Recent statistics show that in terms of pupillage, only one in five students Called to Bar can find pupillage places.
Costs put off many able candidates, especially with the scarcity of training contracts and pupillages, as large debts accrue with no guarantee of being able to complete the training. Many newly qualified solicitors have accrued large debts but the ILEX route can overcome this problem – as they are already qualified as a Legal Executive, they will probably find it easier to get the training contract. There is no such option for prospective barristers. This can lead to only those with financial backing being able to qualify, not necessarily the best people.
The CPE/PGDL may not be seen as a sufficient grounding in law for non-law graduates as it concentrates into one year the work that is usually covered by a law student in three years. The professional bodies of both solicitors and barristers have said that the core subjects should be studied over an 18-month period. However, this option is an opportunity for those able candidates who decide late to join the legal professions to keep the training more affordable and less time consuming.
Chapter 7: Lay People in the Legal System
a) Describe both the selection and the training of lay magistrates. [18 marks]
b) Discuss the disadvantages of using lay magistrates to deal with criminal cases. [12 marks]
OCR G151 June 2009
a) Potential magistrates apply for the position and, providing they fulfil the criteria of being between 18 and 65 and live or work in or near the local justice area in which they wish to sit, will be called for interview by the Local Advisory Committee. There are two interviews, one to assess attitudes, where the committee will look for the qualities of good character, communication skills, sound judgment, social awareness and commitment. The second interview is a practical task based on sentencing to see if the potential magistrate has the ability to do the job. The Advisory Committee actively try to achieve a good cross-section on each bench and have to consider that when recruiting. Names are then put forward to the Ministry of Justice which appoints.
A person will not be chosen if they have serious convictions (minor traffic offences are usually ignored), have a conflict of interests (e.g. police officer, traffic warden or have a relative on the bench) or any condition which would interfere with their duties. Once appointed, they are then sworn in at a local Crown Court.
Magistrates are trained under the Magistrates’ New Training Initiative (MNTI 2) and the training is divided into four areas of competence: Managing yourself, Working as a member of a team, Making judicial decisions; and Managing judicial decision making. All magistrates have to reach a certain level of competence in the first three and those that wish to become chairman of the bench must complete the fourth competency
Initially they undergo an induction before sitting in court and act as observer in court on three occasions. They have given set reading and distance learning material, including a personal development log regarding their role and responsibilities. They have to make visits to prisons, young offenders’ institutions and the probation service. They are given a mentor who is an experienced magistrate and have six sittings with their mentor. There is an appraisal after a year to see if they have achieved the competencies. There is consolidation training after two years. After three years, extra training is available to become a chairperson and to serve in youth and family courts.
b) One perceived disadvantage of using lay magistrates is that they tend to be middle-aged and middle-class so are unlikely to understand many the offenders. This is true to an extent but they still have a much wider background than judges and certainly the gender balance is much better.
Another problem is that there is potential for bias as they get to know some of the prosecutors and police officers as they see them so regularly. This is one of the reasons for the lower acquittal rate than Crown Court but part of training is aimed at eliminating bias and some would see this as a benefit, as fewer guilty people are acquitted.
They do not need to have any knowledge of the law and tend to rely heavily on the Clerk, which can be seen as a disadvantage; however, they have local knowledge and common sense, which keeps the law grounded.
There has been a problem with inconsistency in sentencing over the country, leading to a postcode lottery in sentencing. This is improving due to tighter tariffs in sentencing and better training.
a) Describe the qualifications and selection procedure for choosing a jury. [18 marks]
b) Discuss the arguments for and against keeping the secrecy of the jury room. [12 marks]
OCR, G151, June 2010
a) The basic qualifications for jury service are being aged 18–70, on the electoral register, resident in the UK or Channel Islands for at least five years since the age of 13 and not ineligible or disqualified. Only persons suffering from some mental illness are ineligible to serve.
Disqualification is based on sentences received for convictions. A person is disqualified for life if they have been sentenced to a life sentence or imprisonment for five or more years. They are also disqualified for ten years if they have been sentenced to less than five years’ imprisonment or a suspended sentence or a community order in the last ten years. A person is also disqualified whilst on bail.
A person can be excused if serving in the Armed Forces and their commanding officer certifies they are needed. They can also be excused or have their service deferred for ‘good reason’ such as examinations, pregnancy or disability; the application has to be made to the Jury Central Summoning Bureau.
After receiving a summons, which is generated randomly from the electoral register, court must be attended where potential jurors are put in a jury pool. Fifteen will be chosen at random from the jury pool to go into the court room. There, 12 are chosen at random in court by the clerk. If there are doubts about how a jury was selected, the prosecution or defence can make a challenge to the array or make a challenge for cause because of a juror’s connection with the case or some kind of incapacity. The prosecution has an additional right to ‘stand by’ a juror if they wish to for no specific reason. Challenges are often the result of vetting for a criminal record.
b) One of the reasons for keeping the secrecy of the jury room is that jury members may be more reluctant to serve on a jury if they knew their discussions were public, as there could be possible repercussions from the defendant if those arguing for conviction could be identified. However, no reasons need to be given for a verdict, which makes it difficult to appeal.
Because of the secrecy, juries are given the freedom to ignore the strict letter of the law, e.g. Kronlid (1996), if they believe the law is wrong This can be seen as a strength of the jury system in that the public have the opportunity to send a message to parliament if they think a law is unfair, but perverse decisions which do not follow the law could be seen as wrong and unfair.
The Contempt of Court Act 1981 makes it an offence to disclose, obtain or solicit information about what happened in a jury room so a juror cannot disclose even when a decision is made on very shaky grounds (Mirza and Connor v Rollock (2004)). In Young (1995), a Ouija board was used outside the jury room and resulted in a retrial, though no one would have known if it was in the jury room, which is not satisfactory.