Civil Justice System Research Articles

Remote Hearings: LIPs and Participation in Court Processes

Response to the Civil Justice Council rapid consultation on the impact of COVID-19 measures on the civil justice system. Draws on research on how litigants in person participate in court hearings and the requirements for their effective participation.

Privatization of Civil Justice: Is it Undermining or Promoting the Rule of Law?

The crisis of civil justice system is present in many countries in the EU and worldwide and it takes different forms. In response, many different pathways are explored in order to overcome not only the growing sense of crisis, but also its manifestations. One of the suggested routes in the ongoing efforts to improve access to civil justice at the EU and national levels is the privatization of justice through the ADR mechanisms. In many areas, with the encouragement and support of governments and other policy-making bodies, the administration of justice is being encouraged to leave the courts for alternative forums. Thereby, the ADR are presented as mechanisms which are facilitating informal, fast, cost-effective and affordable access to justice, at the same time preserving public resources. Yet, in spite of these undeniable benefits, ADR mechanisms are subject of some doubts and expressed concerns. One of the major concerns, which has already sparked a wider debate, is whether the informal and private nature of ADR is hostile to the Rule of Law and ultimately to justice itself. Namely, if the privatization of civil justice is considered in the context of the fundamental public commitment to provide substantive justice on an equal basis to all citizens, the question arises whether the ADR mechanisms are capable to secure and foster the virtues of the Rule of Law (publicity, transparency, fairness, equality, etc.). The purpose of this paper is to contribute to this debate, renewing the interest in analysing the relationship between the privatization of civil justice and the concept of the Rule of Law. In the light of evolving social, economic and political circumstances, the paper attempts to answer the question whether the growing privatized dispute resolution landscape is undermining or promoting the rule of law.

THE JUDGE POSNER’S DOCTRINE AS METHOD TO REFORM THE ITALIAN CIVIL JUSTICE

This article represents a preliminary and methodology-oriented effort to conduct an economic analysis of the Italian civil justice system, commonly perceived as inefficient and proposes a different approach. More specifically, it demonstrates how the failure of several Italian legal reforms was based on methodological errors, which led to the inefficiency of the system itself. Accordingly, it proposes an alternative in methodology. For the mentioned purpose, it shall use the theories and methods studied by Judge Posner concerning the judiciary system. In particular, it shall evaluate if the Posnerian methodology could be applied to the reforms to come from the Italian judiciary system. The evaluation is carried out by assessing the behavior of judges, lawyers, and litigants based on the theory of wealth maximization. We highlight that this article is not intended to give specific solutions to the efficiency issues of Italian civil justice. Nonetheless, these pages contain examples and references that demonstrate how the application of this methodology to various Italian rules of the judiciary system could impact its efficiency. These examples represent the adaptation of Posner's applications into the Italian system, based on his concept of efficiency applied to specific Federal procedural rules concerning judges, lawyers, and litigants.

Critical Reflections on the Proposal for a Mediation Act for Scotland

AbstractThis article critically analyses the recent proposal to introduce a Mediation (Scotland) Bill. The proposed Bill aims to introduce a novel process of court‐initiated mediation that will oblige litigating parties to attend a mandatory Mediation Information Session. Adopting a comparative approach with the English and Irish civil justice systems, this article analyses the key elements of the proposed Bill and makes proposals to improve it.

The Irish Mediation Act 2017: Much done, more to do

The Irish Mediation Act 2017 was intended to cement the place of mediation in the civil justice system. A key part of the Act is the regulation of mediation. The Act contains a series of regulatory measures affecting how mediation is practised and organized as a profession. This article shows how the Act has achieved one of these regulatory goals (the regulation of the practice of mediation), while failing to achieve the second (the organization of mediation as a profession). Drawing a comparison with other jurisdictions, the article shows how the failure to fully implement some of the provisions of the Mediation Act 2017 has stymied the development of mediation in Ireland.

In Chancery: The Genesis of Micro Caseflow Management

This article explores an early example of subordinate judicial practice in England and Wales in which we may see some issues that later appear in the relationship between informal justice initiatives (especially alternative dispute resolution) and the civil justice system. Broadly speaking, the paper looks first at the symptoms of systemic failure in the pre-1873 system which led to the creation of the Official Referee’s office. It then considers the relevant recommendations of the Judicature Commissioners and the reasoning behind such recommendation, looking at both the macro- and the micro-levels, before exploring the referees’ diverse jurisdiction which provided a creative foundation for the evolution of interlocutory innovation. The article argues that structural realignment of the court system by the Judicature Commissioners was not sufficient in itself to eradicate all its encumbrances, but it indirectly empowered the referees to eventually bring about revolutionary procedural changes.

DIY Fraud Investigation and Access to Justice: A Case Study

Abstract Access to justice for fraud victims remains an enduring problem in the UK. Law enforcement agencies have limited capacity and capabilities for delivering criminal justice. Civil justice is so expensive that it is only an option for those with deep pockets or lucky enough to find competent professionals who are willing to work under a conditional fee arrangement (no-win-no-fee). This article describes the progress of a fraud case from a victim’s perspective through both the criminal and civil justice systems in the UK. The experiences describe incompetence in law enforcement, dishonesty and incompetence amongst lawyers and other professionals, and fractured, self-centred justice systems that poorly serve the public in England and Wales.

Deciding, ‘What Happened?’ When We Don’t Really Know: Finding Theoretical Grounding for Legitimate Judicial Fact-Finding

The crucial question for many legal disputes is “what happened,”? and there is often no easy answer. Fact-finding is an uncertain endeavor and risk of inaccuracy is inevitable. As such, I ask, on what basis can we accept the legitimacy of judicial fact-findings. I conclude that acceptable factual determinations depend on adherence to a legitimate process of fact-finding. Adopting Jürgen Habermas’s insights, I offer a theoretical grounding for the acceptability of judicial fact-finding. The theory holds that legal processes must embody respect for legal subjects as equal and autonomous agents. This necessitates two procedural features. First, fact-finding processes must be factually reliable. This requires: (a) relevant evidence is admissible and exclusions are justified based on respecting human autonomy; (b) error-risk management is internally coherent and consistent; (c) the standard of proof is, at minimum, a balance of probabilities; (d) evidence is used rationally. Second, fact-finding processes must ensure fulsome participation rights. This project is justificatory—civil justice systems are imperfect, but there are attainable conditions that make them good, which must never be compromised.

The Judicial Panel on Multidistrict Litigation: The Virtues of Unfettered Discretion

Under the federal multi-district litigation (MDL) statute, when there are federal civil actions pending in more than one district — involving one or more common questions of fact — a special panel of seven federal judges may centralize the cases before a single federal judge for pretrial proceedings. This panel, which is selected by the Chief Justice of the United States, is known as the Judicial Panel on Multidistrict Litigation (JPML). Although the stated purpose of the MDL statute is to achieve judicial efficiency in pretrial proceedings, the reality is that only about three percent of the cases end up being transferred back to the transfer-or courts for trial. The other 97 percent are resolved by the MDL judge, either through settlement or dismissal. Moreover, a substantial percentage of the federal civil docket consists of MDL cases. Thus, the JPML’s decisions regarding: (1) whether to create an MDL, and (2) which federal judge should oversee the cases (assuming the cases are deemed suitable for an MDL), have profound consequences for our civil justice system. Although attorneys and scholars have offered numerous reform proposals involving the MDL process, those proposals have all been focused on the functions and powers of the MDL judge, not the decisions of the JPML. This lack of focus on the JPML process is surprising, given the JPML’s crucial role. It is especially surprising because the statute provides few criteria to govern the JPML’s decisions, and it provides for only limited mandamus review of JPML orders. Indeed, only once in the statute’s 52-year history has an appellate court issued a writ of mandamus overturning an order of the JPML. Section I of this article explains that the decision whether to create an MDL, and the selection of the MDL judge, are heavily fact-intensive, and are undertaken without clear guidelines or consistent reasoning. A factor that the JPML finds to be important in one case may be given little weight in another, and in many cases it is difficult to predict how the JPML will rule. Yet, this article concludes in Section II that any attempt to codify detailed criteria to govern the JPML’s decision-making would be extremely difficult, and ultimately self-defeating. As the article notes, the JPML is doing an excellent job, and there is no need to adopt more rigid criteria to govern its decisions or more liberal avenues for appellate review.

Legal and Administrative Challenges of Alternative Dispute Resolution (ADR) as a Peaceful Means of Resolving the Land Dispute in the Rural Areas of Bangladesh

Alternative Dispute Resolution (ADR) is an innovative movement in the civil justice system of Bangladesh including land conflict. Traditional judicial process of Bangladesh especially land litigation is time consuming, expensive and very much complex. People involved in the land conflict, are fear to go to the court to settle their dispute due to unreasonable delay, expenses and unbearable sufferings and most of them prefer ADR as a way of resolving their dispute. Bangladesh has emphasized Alternative Dispute Resolution (ADR) as a means to resolve civil conflict as it saves time, money and energy of conflicting parties, reduces backlog of cases and work volume of court officials and also saves valuable time of the court. Recently ADR has become a popular means of settlement of land conflict among the people of Bangladesh as it is confidential, informal and relieves the parties from sufferings. The main objective of this study is to identify the legal and administrative challenges of ADR as a means of settlement of land conflict in Bangladesh and also to suggest an avenue for the complete success of ADR as an effective means to resolve land conflict in the rural areas of Bangladesh. This study is qualitative in nature which is conducted on the basis of secondary data. Data are collected from various journals, books, reports, newspaper writing and decision of apex court of Bangladesh. The core implication of this research is that it will open a new avenue for the policy maker of the country and the conflicting parties would be able to resolve their land dispute through a peaceful means.

Research Paper #5: Costs and Funding Commissions in Class Actions

In this paper, we examine the problem of costs in class actions in Australia. We review factors giving rise to substantial costs; costs in civil litigation more generally; current methods for the regulation; review and control of costs and possible reforms; reasons for excessive costs in some class actions, including problematic or unethical practices; and costs in North American jurisdictions. Empirical data on litigation funding and legal fees in class action settlements is examined. We also discuss the intersection of legal costs with fiduciary duties and other ethical obligations which may exist in the context of class actions. In our view, in many class actions the legal and transaction costs are excessive. This is, of course, a matter of some significance, not only from the perspective of professional and commercial beneficiaries, class members and judicial officers presiding over applications for approval of settlements, but also in considering the price of access to justice and in evaluating the operation of the civil justice system. We recommend the imposition of more focused and specific affirmative statutory obligations on all participants in the conduct of class actions with broad ranging sanctions and penalties for noncompliance and the establishment of an independent statutory fund, in which funding is secured on the basis of access to justice considerations, rather than the pursuit of profit.

Neutrality in Irish mediation, one concept, different meanings

AbstractThe Mediation Act 2017 places mediation at the heart of the civil justice system in Ireland and protects some of the key principles of mediation. This article discusses neutrality, one of these principles. The article shows how neutrality is discussed by two sets of mediation stakeholders (clients and mediators). Using two data sets, the article demonstrates that both groups recognize the influence of neutrality on the mediation process. At the same time, the article shows that the manner in which both groups discuss neutrality is different.

SOLUCIÓN DE CONFLICTOS EN EL SISTEMA DE SALUD, MEDIACIÓN Y ARBITRAJE EN UN CONTEXTO INSTITUCIONAL

The paper describes a group of dispute resolution mechanisms introduced in the Health Care Reform known as AUGE. The reform included forms of mediation and arbitration that currently represents an important part of the total civil litigation in Chile. The article explores some problems that those alternative mechanisms could create. The most important issue is that the Chilean state do not recognize the importance of a civil justice system and the possible loss of some of its values, especially those relate with the transparency of is operation.

Five reasons why judges should conduct settlement conferences

Judges conduct settlement conferences in civil disputes in many parts of the world. This is an important feature of judicial work in many jurisdictions. In Australia, the role of judges and their relationship with Alternative or Appropriate Dispute Resolution (‘ADR’) processes and, in particular, their role in judicial settlement conferencing processes conducted within the civil justice setting, has been the subject of some discussion in recent years. This article explores the evolving nature of the relationship between courts and ADR and more specifi cally comments on the nature of the judicial function and its relationship with ADR, before discussing the role of judges in relation to judicial settlement conferences. The reasons why judges should conduct settlement conferences are considered in the context of changing court and societal trends and objectives, the skills and attributes of judges, the objectives of the civil justice system and the important role that judges can play in this form of court integrated ADR.

The recovery of wages: Legal services and access to justice

A basic test of a labour law regime is the enforcement of minimum wage and other entitlements. This paper is concerned with the recovery of underpayments especially recovery of ‘small’ amounts by workers who are vulnerable in the marketplace. We gauge levels and quality of access to the legal information and advice which is necessary for workers to determine their legal entitlements. We also assess the level of services accessible to workers when they need assistance to pursue an underpayment claim within the mainstream civil justice system. In the context of the broader workplace relations reforms which are proposed within the federal sphere, we welcome the expansion of the enforcement agency, to be renamed the Offi ce of the Fair Work Ombudsman, but argue in favour of retaining the existing support services.

Access to the Federal Court of Justice in Germany

The text explains the role of the Supreme Court in the civil justice system in Germany with reference to a major reform of civil procedure that was enacted in 2001. The reform of access to the Federal Court of Justice aimed at striking a balance between individual justice and public interest. The author discusses the requirements of admissibility of ordinary appeal and appeal on points of law, which may be filed to the Federal Court of Justice. The German legislator has notably renounced the ratione valoris criterion (monetary threshold) and adopted the requirement of the leave to appeal. The power to restrict access to the Supreme Court was conferred on appellate courts. As a consequence, an appeal on points of law may be lodged only if it is admitted by judex a quo. Although the denial of admission is subject to appeal, the text argues that the reasons for admittance ensure that the public interest in uniform adjudication and clarification of law will be duly served.

Moving on from a judicial preference for mediation to embed appropriate dispute resolution

This paper critically considers judicial approaches to and promotion of mediation within the English civil justice system. It argues that the overzealous judicial emphasis on mediation in the ADR jurisprudence has restricted the wider concepts of ADR and ‘dispute resolution’ which in turn has created what the author terms ‘judicial mediation bias’. The paper critically explores these issues through an analysis of the ADR jurisprudence, with a focus on key Court of Appeal ADR authorities, and successive civil justice reforms. The paper makes proposals for reform, including the potential use of stages one and two of Lord Justice Briggs’ online court to promote a greater application of a variety of ADR procedures, in particular, judicial early neutral evaluation and collaborative dispute resolution.

The Supreme Court's Landmark Decision in New Prime Inc. v. Oliveira: A Panoptic View of America's Civil Justice System and Arbitration

On the surface, the 2019 U.S. Supreme Court case of New Prime Inc. v. Oliveira involves the trucking industry and a narrow issue of arbitration law. But on a deeper level, this case raises fundamental questions about America’s civil justice system and how our society should resolve disputes. This article examines the New Prime decision from past, present, and future points of view. From the perspective of the past, the New Prime case stands apart as representing the first decision in several decades where the Supreme Court has ruled in favor of workers and rejected an expansive interpretation of the Federal Arbitration Act. Viewed from a present perspective, New Prime can also be viewed as part of the larger sociopolitical environment in which it was issued. There has been a recent, developing backlash against the widespread use of forced arbitration in America, along with bipartisan support for legislative reforms as well as some private initiatives to cut back on the use of arbitration. Also, the contentious confirmation hearings of Justice Brett Kavanaugh and President Donald J. Trump’s attacks on the judiciary have raised questions about partisanship and the independence of the judiciary. The unanimous New Prime decision and its curtailment of arbitration arguably reflect the particular environment in which it was issued. Finally, looking ahead to the future, the New Prime case can solve some problems involving the FAA and raise several others. The Court’s analysis in New Prime suggests a new judicial approach that can be used to fix the legal framework for arbitration. New Prime also raises larger questions about the scope of the FAA and which workers are exempt from its coverage, and workers in the gig economy, such as Uber and Lyft drivers, could be impacted and no longer forced to arbitrate.

Fighting with the Wind: Claimants’ Experiences and Perceptions of the Employment Tribunal

Abstract The conceptualisation of access to justice in the Employment Tribunal (ET) as a public benefit essential for the realisation of the rule of law has recently been reaffirmed by the Supreme Court’s judgment in R v Lord Chancellor [2017] UKSC 51. However, reforms to the law and policy framework in recent years have been framed by Government as providing a necessary shift away from the use of full hearings due to the costs incurred by both the public and business. This article reports on the findings of research which tracked workers with ET claims who could not afford to pay for legal advice and representation. Their experiences and perceptions shed valuable light on the operation of the ET system. Many claimants were left dissatisfied, in particular those whose cases did not make it to full hearing. The data identify a range of barriers to justice, which impact on the ability of individuals to advance their claims and to enforce remedies. The article considers the use of ‘worker vulnerability’ in this context and the different interpretations applied by policy-makers. With reference to the research findings, we argue that vulnerability is universal and that, to counter it, the State has a central role to play in building individual and institutional resilience. We conclude by calling for the need to reclaim the concept of access to the civil justice system as a public good, capable of transcending private interests and providing fundamental protections against worker exploitation.

Small Claims Court Mechanism in Business Dispute Resolution as an Attempt to Apply Fast-Track Basis in the District Courts and its Comparison with Some Countries

The implementation of Small Claims court mechanism according to Supreme Court Regulation (PERMA) Number 2/2015 concerning Procedures for Small-Claims Court Resolution recently granted a breakthrough in the civil justice system particularly in Indonesia. It was reached by the Supreme Court in order to reduce the court burden against cases with disputes below IDR 200 million rupiah. The disputes resolution by Small Claims court mechanism is done by a single judge assisted with registrar and must completed within 25 working days, the final decision is binding, thus unable to ask for appeal or judicial review. This article tries to comprehend dispute resolution through Small Claims mechanism in several state courts, such as Medan district Court, Palu, and the Jember. The study, also aims to comprehend the comparison of Small Claims mechanism in Indonesia and small claims in the Netherlands and UK in business disputes resolution. The study employs a normative juridical method. Based on the studies, the implementation through Small Claims court mechanism in Indonesia has been carried out in accordance with the Supreme Court Regulation Number 2/2015. Comparison on business dispute resolution using Small Claims court mechanism in Indonesia and in Netherlands and UK proof that the proof mechanisms whether in Indonesia, Netherlands and United Kingdom relatively simple. Legal remedies for Small Claims decision in Indonesia and the verdict in the Netherlands and in England are limited. The distinction is that the case number in Indonesia is higher than the number in the Netherlands and England.