Miljen Matijašević
E-mail: miljen.matijasevic@gmail.com
Office: G10, room 6 (1st floor)
Tue, 11:30-12:30
Today’s session
1.
Revision of the last session
2. Legal Aid
3. Civil Procedure in the UK
Sources and Varieties of English Law – Statute Law in Britain
Revision questions
1.
2.
3.
4.
5.
What are the four sources of English law?
Explain the two meanings of common law!
Who is subject to EU law and where is it created?
What are the origins of common law?
What about equity?
Complete the definitions for
branches/fields of law, part 1
1.
The part of law concerned with the punishment of
offences defined as crimes by the law
2. The branch of law concerned with family matters
3. The law of state regulating its domestic affairs
4. The part of law concerned with the constitution or
government of the state, or the relationship between
the state and citizens
5. The part of law concerned with income and taxes
Complete the definitions for
branches/fields of law, part 1
1.
2.
3.
4.
5.
The part of law concerned with the punishment of
offences defined as crimes by the law CRIMINAL LAW
The branch of law concerned with family matters
FAMILY LAW
The law of state regulating its domestic affairs
NATIONAL LAW
The part of law concerned with the constitution or
government of the state, or the relationship between
the state and citizens CONSTITUTIONAL LAW
The part of law concerned with income and taxes
REVENUE LAW
Complete the definitions for
branches/fields of law, part 2
1.
The branch of law primarily concerned with the rights and
duties of individuals towards each other
2.
The part of law consisting of rules which determine how a
case is administered by the courts
3.
The body of law which deals with the powers of the
executive or administrative organs of the state
4.
A body of rules that control or affect the rights of states in
their relations with each other and of individuals in
relation to foreign states
5.
The law that determines the rights and duties, used by the
courts in making decisions
Complete the definitions for
branches/fields of law, part 2
1.
The branch of law primarily concerned with the rights and
duties of individuals towards each other PRIVATE (CIVIL) LAW
2.
The part of law consisting of rules which determine how a case is
administered by the courts PROCEDURAL LAW
3.
The body of law which deals with the powers of the executive or
administrative organs of the state ADMINISTRATIVE LAW
4.
A body of rules that control or affect the rights of states in their
relations with each other and of individuals in relation to foreign
states INTERNATIONAL LAW
5.
The law that determines the rights and duties, used by the courts
in making decisions SUBSTANTIVE LAW
Revision questions
1.
2.
3.
4.
6.
7.
8.
What are the executive bodies in the UK?
What are the parts of the British Parliament?
What do you know about each part?
What is the relationship between statute law and
common law today?
Describe the legislative procedure in the British
Parliament.
What is the Queen's role in Parliament?
What is a Bill? What types do you know?
Unit 8
Legal Aid
Answer the question with your partner:

Equality before the law is a requirement laid down in
the European Convention on Human Rights. Is that
really the case in practice? Why (not)?
Access to Justice
 EQUALITY BEFORE THE LAW - implications:
 Everyone knows the law
 Everyone will be able to afford the same quality representation
 Two main needs:
1.
obtaining good quality LEGAL ADVICE
2.
being represented in a court of law
(LEGAL REPRESENTATION)
Access to Justice

European Convention on Human rights – imported into English law
in 2000

Principles in criminal procedure – everyone is entitled to:

a fair and public hearing

have adequate time and facilities for the preparation of their defence

defend himself in person or through legal assistance of his own choosing or, if
he has not sufficient means to pay for legal assistance, to be given it free when
the interests of justice so require

In civil procedures:

The aim is to ensure the litigant to be on an equal footing with their opponent
(litigant – stranka u parničnom postupku)
Access to Justice

Legal Aid Act 1988 – brings together various systematic schemes of
legal aid

Candidates for legal aid were put through a means test, and the case
itself through a merit test
(means – sredstva; merit – zasluga)
Access to Justice

MEANS TEST – aimed at establishing whether the candidate is
sufficiently financially disadvantaged to be eligible for legal aid

MERIT TEST – the case is evaluated in order to establish whether it
was relevant enough to receive public funding
financially disadvantaged, adj. – poor
eligible (for sth), adj. – meeting the criteria for sth
Access to Justice

This system did not function very well - a lot of money
was being spent and a very low percentage of the
disadvantaged was actually getting free legal aid

As a consequence alternative voluntary services
developed to deal with the ‘unmet legal need’

The legal aid system radically reformed by the Access to
Justice Act 1999
Access to Justice Act 1999

Introduces new criteria and selection mechanisms

Establishes the main authority for the organisation and
provision of free legal aid:
the Legal

Services Commission (LSC)
Set up as an executive non-departmental public body of
the Ministry of Justice
Legal Services Commission (LSC)
CONTRACTING
 In the earlier systems, any solicitor could provide legal
assistance and then claim fees from the State
 Within the new system, only those legal professionals who
meet certain quality criteria and then conclude a contract
with the LSC can provide free legal aid.
 Contracted firms undergo regular quality audits, but are
also provided training in areas of the law where free legal
aid is regularly sought (homelessness, repossession of
property, human rights, immigration and asylum, etc.)
The Funding Code
 Funding for legal advice and representation available
for:
very expensive cases, judicial review (revizija sudskog postupka/
odluke), claims against public authorities (tužbe protiv upravnih
tijela), clinical negligence (liječnički nemar), housing, family,
mental health, immigration and asylum
 means test may apply
The Funding Code
 Funding for legal advice and representation NOT
available for:
personal injury claims, boundary disputes (sporovi oko međe),
wills, defamation (kleveta), company law, etc.
Criminal Defence Service (CDS)
 CDS provides legal advice and representation to people
under police investigation or facing criminal charges
 Run by the LSC in partnership with criminal defense
lawyers and representatives
 Makes contracts and employs attorneys directly to provide
legal advice and assistance (Public Defenders)
 Defendants have the right to choose another legal
representative, other than the public defender
Criminal Defence Service (CDS)
 Cases in which the defendant is represented
through CDS undergo a merit test, whose aim is to
establish that the case is more than trivial
 Defendants undergo a means test
Criminal Defence Service (CDS)
 Depending on the results of the test, in which a
spouses’s assets and possible criminal assests are
also considered, the defendant may be required to
contribute towards the cost of the proceedings
 This is to prevent, among other things, defendants
with assets acquired through crime from having
access to free legal aid
spouse, n. - supružnik
assets, n. – imovina, sredstva
Conditional Fee Agreements (CFAs)
 “No Win No Fee”
 Defined as “an agreement with a person providing
advocacy or litigation services which provides for his fee
and expenses, or any part of them, to be payable only in
specified circumstances”, i.e. only if the lawyer wins the
client’s case
 Available only for civil cases, prohibited in criminal
proceedings and virtually all family proceedings.
Legal Aid Agency 2013
 Legal Aid, Sentencing and Punishment of Offenders Act
2012 abolished the LSC
 instead, the Legal Aid Agency set up as of 2013
 carries out similar work but no longer part of the Ministry
of Justice
 greater independence in funding-related decision making
Key vocabulary
equality before the law
legal advice
legal representation
means test
merit test
eligible
assets
Legal Services Commission
Legal Aid Agency
contracting
Conditional Fee Agreement ("no win no fee")
Vocabulary practice
provider – defamation – assets – eligible – judicial – claim
1.
If it is established that a defendant in a criminal proceeding has substantial .............. , he or
she is not .............. for free legal aid.
2.
Unhappy with the court’s decision, Mr. Caulfield filed for .............. review.
3.
The Legal Services Commission concludes contracts with various .............. of legal assistance
and representation, ranging from voluntary organisations to large law firms.
4.
Marion Kirby thought the article published about her contained information damaging to
her reputation, so she decided to file a .............. lawsuit against the author of the article.
5.
In the past, legal aid could be obtained from any solicitor, who would then .............. their
fees from the State.
Vocabulary practice
provider – defamation – assets – eligible – judicial – claim
1.
If it is established that a defendant in a criminal proceeding has substantial ASSETS, he or
she is not ELIGIBLE for free legal aid.
2.
Unhappy with the court’s decision, Mr. Caulfield filed for JUDICIAL review.
3.
The Legal Services Commission concludes contracts with various PROVIDERS of legal
assistance and representation, ranging from voluntary organisations to large law firms.
4.
Marion Kirby thought the article published about her contained information damaging to
her reputation, so she decided to file a DEFAMATION lawsuit against the author of the
article.
5.
In the past, legal aid could be obtained from any solicitor, who would then CLAIM their fees
from the State.
Unit 9
Civil law
 Concerned with disputes between individuals
 Action taken by the aggrieved party
Civil Procedure
 procedure activated when one private citizen or
enterprise seeks to bring another to court for a civil
wrong against them, such as a breach of contract
or a tort
 TORT – an obligation NOT arising from a contract
(e.g. negligence)
Civil Procedure
 Parties in a civil procedure (litigants):
 CLAIMANT (formerly PLAINTIFF)

the person filing a lawsuit
 DEFENDANT

the person being sued
Standard of proof
 in civil trials, the task of the court – to establish
whether the defendant is LIABLE
 LIABILITY – legal responsibility
 the standard of proof:
a balance of probabilities
 i.e. the claimant has to prove that it is more likely
than not that the defendant is liable
Civil Procedure
 unlike in criminal cases, the State has no
interest in the outcome of the case
 it is up to the claimant to file a lawsuit, UNLESS
the State is one of the litigants, i.e. parties to the
procedure
 the interest and task of the State is to enable
resolution of a private dispute, i.e. prescribe rules
for civil procedures (Civil Procedure Rules)
Starting Proceedings
 claimant issues/files a claim by filling in the
claim form
 the claim form functions as a summons and is
served on the defendant
 the claim must include the particulars of the
claim (details) and specify the remedy sought
Starting Proceedings
 possible remedies

COMPENSATION/DAMAGES (specified or unspecified
monetary sum)

INJUNCTION (a court order prohibiting certain conduct)
 particulars may also include points of law and
witness lists
 claim forms must be served on the defendant
within four months
Starting Proceedings
 After he/she has been served, the defendant
must within 14 days:

admit the claim,

file a defence,

file a counterclaim, or

acknowledge receipt
Starting Proceedings

if the defendant fails to choose any of those options,
judgment may be given in favour of the claimant

if the defendant admits the claim, there is no trial

defendant may also request a default judgment

this is very frequent (3/4 of cases), e.g. in cases where a
company is collecting debt from a customer
Starting Proceedings

parties encouraged to settle

only under 20 per cent of civil disputes are ever brought
to court

the parties are invited to exchange information and seek
to resolve the dispute outside court

if one party obstructs the negotiations, they can be
penalized in costs, if the action later comes to court
Allocation to a regime
case will be allocated to a regime of trial depending on:


the remedy sought,

the complexity of facts, law and evidence

the number of parties,

the importance of the claim to non-parties, etc.
Three types of procedure

claims allocated to one of three REGIMES:
small claims track
1.

for most actions under £5,000, which can be tried in a day
2. fast track

for most cases £5-15,000, or over one day’s trial
multi-track
3.

for claims over £15,000
Small claims track
 usually conducted in a district judge’s chambers
 judges may choose the procedure to follow:

inquisitorial (judge asks most of the questions)

adversarial (opening statements, cross-examination
of witnesses)
 judges give formal judgments applying the law
and state their reasons orally
Fast track
 standard procedure:
 disclosure (of documents which adversely
affect the case or support another party’s case, or
as otherwise required),
 exchange of witness statements, expert
evidence,
 fixing the trial date
Multi-track
 complex cases, no standard procedure
 high-profile cases, class actions (involving several
claimants against one defendant)
 intention is to be flexible
 potentially high costs of trial – incentive to settle
Multi-track

the following cases have been suggested for multi-track:

those of public importance (e.g. a dyslexic suing her local
education authority for failure to diagnose her condition)

test cases (e.g. ex-miners suffering from respiratory diseases
winning a case against British coal, which encouraged many
others to claim compensation in 1988)

clinical disputes (a.k.a. medical negligence)

etc.
Basic trial procedure (fast/multi-track)
1.
2.
3.
4.
5.
6.
7.
8.
Claimant/claimant’s advocate makes their opening speech.
Claimant’s witnesses/expert witnesses are cross-examined, reports
and documents are analysed
Defendant/defence advocate makes their opening speech
Defence witnesses/expert witnesses are cross-examined, reports and
documents are analysed
Closing speeches by the parties or their representatives
Judge delivers judgment or sums up the evidence to the jury (if
present) and they reach a verdict. Judge usually makes an order.
Judge hears arguments on costs an makes an order as to costs.
Judge hears applications for permission to appeal. Trials are
recorded and transcripts may be requested.
“No case to answer”
 at the end of the claimant’s evidence in the trial,
the defendant may submit to the court there is “no
case to answer”
 this means he considers that the claimant’s case
has no real prospect of success
 if the court agrees, it will uphold that submission
and make a ruling in favour of the defendant
Key vocabulary
breach of contract
tort
claimant
defendant
liable - liability
balance of probabilities
file a claim
summons
service
(to serve the claim ON the defendant)
remedy
compensation
injunction
counterclaim
small claims track
fast track
multi-track
inquisitorial procedure
adversarial procedure
disclosure
"no case to answer"
adversarial - disclosure – claim form – counterclaim
admission – inquisitorial - witness statement
1.
The document in which the defendant makes a claim against the claimant:
..............
2.
The document in which the defendant agrees to the claim made by the claimant:
the form of ..............
3.
The document starting a claim proceedings : ...............
4.
The system of justice in which each side collects and presents their own evidence
and attacks their opponent by cross-examination: ...............
5.
The process by which the claimant is required to inform the defendant of
documents they hold relevant to the claim: ...............
6.
The document giving evidence by someone who saw or heard something critical to
the case ...............
7.
The system of justice in which the judge asks most of the questions: ...............
Answers
1.
The document in which the defendant makes a claim against the claimant:
COUNTERCLAIM
2.
The document in which the defendant agrees to the claim made by the claimant: the form of
ADMISSION
3.
The document starting a claim proceedings : CLAIM FORM
4.
The system of justice in which each side collects and presents their own evidence and attacks
their opponent by cross-examination: ADVERSARIAL
5.
The process by which the claimant is required to inform the defendant of documents they
hold relevant to the claim: DISCLOSURE
6.
The document giving evidence by someone who saw or heard something critical to the case
WITNESS STATEMENT
7.
The system of justice in which the judge asks most of the questions: INQUISITORIAL
Thank you for your attention!