English for social workers I session 3, 21 oct 2013

1. English for social workers Isession 3, 21 oct 2013 Miljen Matijašević E-mail: miljen.matijasevic@gmail.com Office: G10, room 6 (1st floor) Tue, 11:30-12:30

2. Today’s session • HW check, Revision of the last session • Legal Aid • Civil Procedure in the UK

3. Revision of the last session Sources and Varieties of English Law – Statute Law in Britain

4. Revision questions • 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? HOMEWORK CHECK (p.9, ex.5)

5. Revision questions • 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?

6. Legal Aid Unit 8

7. Legal Aid Answer the questions with your partner: Equalitybeforethelaw is a requirementlaiddownintheEuropeanConvention on Human Rights. Isthatreallysoinpractice? Why (not)? If you had a problem whichmightberesolvedby a court, what would you do? What do you think most people would do?

8. 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: • obtaining good quality LEGAL ADVICE • being represented in a court of law (LEGAL REPRESENTATION)

9. 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)

10. 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)

11. 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

12. 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

13. 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)

14. 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.)

15. The Funding Code • Funding for legal advice andrepresentationavailable for: very expensive cases, judicial review (revizija sudskog postupka, revizija sudske odluke), claims against public authorities (tužbe protiv upravnih tijela), clinical negligence (liječnički nemar), housing, family, mental health, immigration andasylum • means test mayapply

16. The Funding Code • Funding for legal advice andrepresentation NOT available for: personal injuryclaims, boundary disputes (sporovi oko međe), wills, defamation(kleveta), company law, etc.

17. 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

18. 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

19. 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

20. 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 • Availableonly for civil cases, prohibited in criminal proceedings and virtually all family proceedings.

21. Key vocabulary equality before the law legal advice legal representation means test merit test (to be) eligible (for) assets Legal Services Commission contracting Conditional Fee Agreement ("no win no fee")

22. Vocabulary practice

23. Vocabularypractice provider – defamation – assets – eligible – judicial – claim • If it is established that a defendant in a criminal proceeding has substantial .............. , he or she is not .............. for free legal aid. • Unhappy with the court’s decision, Mr. Caulfield filed for .............. review. • The Legal Services Commission concludes contracts with various .............. of legal assistance and representation, ranging from voluntary organisations to large law firms. • 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. • In the past, legal aid could be obtained from any solicitor, who would then .............. their fees from the State.

24. Vocabularypractice provider – defamation – assets – eligible – judicial – claim • If it is established that a defendant in a criminal proceeding has substantial ASSETS, he or she is not ELIGIBLE for free legal aid. • Unhappy with the court’s decision, Mr. Caulfield filed for JUDICIAL review. • The Legal Services Commission concludes contracts with various PROVIDERS of legal assistance and representation, ranging from voluntary organisations to large law firms. • 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. • In the past, legal aid could be obtained from any solicitor, who would then CLAIM their fees from the State.

25. Civil Procedure in the UK Unit 9

26. Civil law • Concernedwithdisputesbetweenindividuals • Actiontakenbytheaggrievedparty

27. 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)

28. Civil Procedure • Parties in a civil procedure (litigants): • CLAIMANT (formerly PLAINTIFF) • the person filing a lawsuit • DEFENDANT • the person being sued

29. Standard of proof • in civil trials, the task of the court – to establish whether the defendant is LIABLE • the standard of proof: a balance of probabilities • i.e. theclaimanthas to prove that it is more likely than not that the defendant is liable

30. 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

31. Civil Procedure • although a vast majority of disputes do not end up in courts, in the past, courts used to be overburdened with cases, and litigation was infamously slow, complex and expensive • Civil Procedure Act (1997) – a radical reform • Civil Procedure Rules (CPR) • simplify the procedure and provide for cuts in expenses and acceleration of proceedings

32. Starting Proceedings • claimant issues 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

33. Starting Proceedings • possible remedies • COMPENSATION (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

34. Starting Proceedings • After he/she has been served, the defendant must within 14 days: • admit the claim (using the admission form), • file a defence (using the defence form), • acknowledge (using the acknowledgment of service form), or • file a counterclaim (using the counterclaim form)

35. Starting Proceedings • if the defendant fails to choose any of those options, judgment may be given in favour of the claimant • 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

36. StartingProceedings • partiesencouraged to settle • Pre-action Protocols – guidelines aimed at resolving disputes before action is taken, i.e. before the cases come to court • encouraging the exchange of information and putting the parties into a position to settle fairly • only under 20 per cent of civil disputes are ever brought to court • if one party obstructs the negotiations, they can be penalized in costs, if the action later comes to court

37. Starting Proceedings • ifthecasegoes to trial, theproceduraljudgewilldeterminethetypeof procedure to befollowedand set thetimetable for thetrial • Thetypesof procedure are known as REGIMES or TRACKS

38. Allocation to a regime • This depends on: • the remedy sought, • the complexity of facts, law and evidence • the number of parties, • the importance of the claim to non-parties, etc.

39. Three types of procedure • claims allocated to one of three regimes: • small claims track • for most actions under £5,000, which can be tried in a day • fast track • for most cases £5-15,000, or over one day’s trial • multi-track • for claims over £15,000

40. Allocation to a regime • small claims and fast track cases • tried in county courts • multi-track cases • tried in either county courts or the High Court of Justice

41. 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

42. 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

43. Multi-track • complex cases, no standard procedure • high-profile cases, classactions (involvingseveralclaimantsagainst one defendant) • intention is to be flexible • potentially high costs of trial – incentive to settle

44. 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) • cases with the right to jury trial (e.g. contested divorces, contested probate cases, fraud, defamation, etc.)

45. “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

46. 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"

47. Vocabulary practice

48. adversarial - disclosure – claim form – counterclaim admission – inquisitorial - witness statement • The document in which the defendant makes a claim against the claimant: .............. • The document in which the defendant agrees to the claim made by the claimant: the form of .............. • The document starting a claim proceedings : ............... • The system of justice in which each side collects and presents their own evidence and attacks their opponent by cross-examination: ............... • The process by which the claimant is required to inform the defendant of documents they hold relevant to the claim: ............... • The document giving evidence by someone who saw or heard something critical to the case ............... • The system of justice in which the judge asks most of the questions: ...............

49. Answers • The document in which the defendant makes a claim against the claimant: COUNTERCLAIM • The document in which the defendant agrees to the claim made by the claimant: the form of ADMISSION • The document starting a claim proceedings : CLAIM FORM • The system of justice in which each side collects and presents their own evidence and attacks their opponent by cross-examination: ADVERSARIAL • The process by which the claimant is required to inform the defendant of documents they hold relevant to the claim: DISCLOSURE • The document giving evidence by someone who saw or heard something critical to the case WITNESS STATEMENT • The system of justice in which the judge asks most of the questions: INQUISITORIAL

50. Vocabulary practice 2 timetable – summons – claim – settle – ADR – allocate – injunction • In order to cut costs and avoid litigation, parties in a civil disputeare encouraged to .............. or to choose .............. (e.g. mediation). • Depending on the complexity of the case and the value of the claim, each case is .............. to a regime. The simplest cases are conducted according to the small .............. track • A civil law case may end in a party paying the amount of money requested by the claimant, or in a(n) .............., ordering the defendant to take a particular course of action. • The claim form is submitted to the court and then used as a(n) .............., informing the defendant about the claim made against him or her and inviting him to respond to it.