Civil Justice System Provides a Platform

Introduction

Civil justice system provides a platform for litigation between two private parties or organisations to be resource. Litigation arises following disputed in contracts, marriage, divorce, custody, probate, real estate or torts. The civil justice system is therefore, designed to sort out disputes between individuals or organisations. The state is not involved in civil cases, except insofar as it provides the courts and personnel. The objective of the civil justice system are to guarantee that those affected by their controversy can have easy access to the system for a speedy, simple, cheap and effective dissolution to their conflict.

In recent years, the civil justice system has attracted much criticism. It was against this background of criticism that the Lord Woolf was appointing to review the system in England and Wales.

The outcome will be one of a number of civil remedies that are design to benefit the claimant if a civil case is successful from the point of view of the claimant. In civil proceedings, the claimant will sue the defendant and a successful claim will result in judgement for the claimant. The law contract is civil law, so the defendant would be ‘sued’ or ‘litigated against’ or have ‘a claim taken against’ them.

Over the pass few years, the system has become plagued with numerous problems arising from difficult access to the system with complex, slow, and expensive procedure. The Woolf committee came out with a report that is Access to Justice, Final Report 1996, with about 300 recommendations to make the changes to the civil justice system. Beforehand to this, there were 62 reports and unluckily they were settling it one by one. This report is the 63rd that intended to give a comprehensive review of the civil justice system.

In April 2005, the new organisation, Her Majesty’s Courts Service (HMCS) was established. The purpose of HMCS is to deliver justice efficiently and effectively. The organisation has seven regions: North West, North East, Midlands, Wales and Cheshire, South East, South West and London. The proposal to set up a new system of courts administration in England and Wales derived from Sir Robin Auld’s Review of the criminal courts. Hence, the government accepted Sir Robin’s proposals for a unified system of courts administration in the White Paper ‘Justice for All’.

1. 1. The Civil Justice System and its objectives

The civil justice system had deliver the objectives of reducing cost, delay and complexity, by managing cases to ensure those litigants and their representatives keep to the timetable, and undertake only necessary work.

The system of appeal in civil cases is from a County Court or the High Court, there is an appeal to the Civil Division of the Court of Appeal on law only. Another is from the High Court, there may be an appeal to the House of Lords on a matter of legal importance and the last is from the Court of Appeal, there can be an appeal to the House of Lords on fact or law, but usually appeal allowed on matters of legal importance.

Problems Identified By Woolf Committee

In Access to Justice: Final Report, Lord Woolf was state some far-reaching review of the civil justice system but the system at that time failed to achieve all those goals. Lord Woolf thinks that making the courts more accessible could lead to a flood of cases that would provide a speedy resolution and keep costs down.

The major problem that research by Woolf Committee was that of costs. Lord Woolf found that one side’s costs exceeded the amount in dispute in over 40 per cent of cases where the claim was for under £12,500. The complexity of the litigation process made the service of lawyer essential.

The Civil Justice Review found that the time of the cases could be up to three years for country courts and five for High Courts. Both lawyers and the courts disregarded by time limit that laid down for every stage of an action. Long delays placed intolerable psychological and financial burdens on accident victims to the claimants.

Litigation was often seeing as a battlefield where no rules applied in the adversarial process. Even before the 1999 reforms, the old rules had been mainly directly towards preparation for trial. On the oral evidence was place by too much emphasis. Therefore, oral evidence was slow down proceedings thus adding cost and delay.

Proposals By Woolf Committee

Lord Woolf set out his proposals for the reform of the civil justice system by addressed this issue in his report, Access to Justice (July 1996). At his proposals was the allocation of civil cases to ‘tracks’, which would determine the degree of judicial case management.

Lord Woolf recommended the development of pre-action protocols to lay down a code of conduct to push the parties into behaving reasonably during the pre-trail stage. They strive to achieve this through establishing a timetable for the exchange of information. Pre-action protocols should also enable proceedings to run to timetable, and efficiently, if litigation proves to be necessary.

According to Lord Woolf, in 1995, the courts had made a move towards case management following a Practice Direction encouraging such method, but it was only with the new Civil Procedure Rules (CPR) that case management came fully into force. Case management also introduce to ensure the case to pursue diligently. Once proceedings have commenced, the filing of a defence will triggered the court’s powers of case management.

The small claims track cases deal with actions with a value of less than £5,000 (or £1,000 for personal injury cases). It was never actually a separate court, procedure used by country courts to deal with relatively small claims. This procedure aims to provide a cheap, simple mechanism for resolving small-scale consumer disputes. A party can choose to represent by a layperson under the Lay Representatives (Right of Audience) Order 1992 made under s.11 of the Courts and Legal Services Act 1990.

The fast-track cases deal with actions of a value between £5,000 and £15,000 and it normally dealt with by the country court. Although the parties can vary certain matters by agreement, the rules are quite clear that an application must be made to court if a party wishes to vary the date for the trail. Fixed costs for ‘fast-track’ trials have introduced to keep lawyers’ bills down.

Upon allocation to the multi-track cases will deal with actions with a value higher than £15,000. It directions for the management of the case and set a timetable for those steps to taken are given by the court. Unlike the fast-track, multi-track will fix the trail as soon as it is practicable to do so. The High Court only hears multi-track cases.

Criticisms Of Lord Woolf Report

A major irritation for practitioners has been the fact that, the new Civil Procedure Rules continually amended and extended since they launch. According the Elliot and Quinn, the openness that Lord Woolf was so keen to encourage as fundamental principle underlying his reforms might prejudiced by the ‘fear factor’. The intention of Lord Woolf to set up pre-action protocol was to encourage out-of-court settlement, but according to Elliot and Quinn, the claimant may lose ‘the chances of being awarded a better settlement if the case goes to trial and he wins’ and the out of court settlement create injustice because ‘the parties usually hold unequal bargaining positions’.

Research carried out by Professor John Baldwin (2003) has highlighted the enforcement was a weakness in the civil justice system. The danger is that if the system of enforcement is not improved creditors will look to other methods of securing payment. The use of pre-action protocols and claimant offers to encourage pre-trail settlements divert cases from being litigated in the courts. The parties usually hold very unequal bargaining positions, this is because of the high number of out-of-settlements create injustice.

Professor Zander (1998) felt that the reforms were fundamentally flawed. Zandar has criticised the causes of delay, pointing out that ‘unsubstantiated opinion’ rather than the real evidence. According to Zandar, he feels that case management is appropriate for only a minority of cases and the key is to identify these. Most will feel that justice has an interventionist judge chivvying the parties to a resolution of their dispute and done by a short, sharp trail with restricted oral evidence. Zandar has argued that the litigation can be very costly and state funding is often not available.

Conclusion

As conclusion, civil justice system provides an avenue for speedy, cheap and just dissolution of disputes for those claimants and defendant. In the civil justice system, offenders are held accountable, not to the state, but rather to the victims who suffered the direct impact of the crime. Although over the years the system has become plagued with numerous problems arising, the Woolf Committee was trying to come out a report, Access to Justice, Final Report in 1996 to make a radical change to the system.

Question 2

Issues

Andy, who had placed an advertisement on Monday in the local newspaper, the East Anglia Mail about the reward of £5,000 for the return of his dog, Cassey. On Wednesday, Bolam, who response to the advertisement was bought a special equipment that cost £500 to find out the dog. On Tuesday, Stan, the shepherd, found the dog attacking his sheep and capture the dog. On Friday, he brought the dog to the town of Oldcastle where he was told about the reward. The other question was arising that if Stan was the younger brother of Andy and the dog was died before it returned to Andy.

2. On Monday, Andy advertised offering a reward of £5,000 for finding a rare breeding dog, Cassey in a local newspaper, the East Anglia Mail. He lost his pet while exercising it on a nearby hillside. An offer is a clear indication of the offeror’s willingness to enter into an agreement under specific terms. It made in a manner that a reasonable person would understand its acceptance would result in a binding contract. An offer also considers as voluntary but conditional promise submitted by offeror and offeree for acceptance, and become legally enforceable if accepted by the offeree. On the other hand, an invitation of treat is merely declaration of willingness to enter into negotiation; it is not an offer, and cannot accept so regarding form a binding contract. As the view of Pharmaceutical Society of Great Britain v Boots Cash Chemists Ltd [1953] 1 All ER 482, if a man advertises goods at certain price, they have a right to go into the shop and demand the article at the price marked. (Furmston,et al. 1996) The customers, when he was given a basket when entering the shop, and having selected item from the shelves that he required, put them into the basket and took them to the cash desk. If the dealer accepted the offer, it will conclude a contract.

In Partridge v Crittenden [1968] 2 All ER 421, the defendant was advertised bramblefinch cocks and hens for sale at a stateprice. He was charged with unlawfully offering for sale a wild live bird contrary to the provisions of the Protection of Birds Act 1945. The advertisement is appeared under the feneral heading of ‘Classified Advertisements’ and there is no direct use of the words ‘offer for sale’. Therefore, the advertisement was just simply an invitation to negotiate. According to Lord Parker, “there is business sense in their being construed as invitations to treat and not offers for sale”. (34)

In Carlill v Carbolic Smoke Ball [1893] case, the defendants were the owner of a medical preparation named “Carbolic Smoke Ball”. They advertised in many newspapers offering a reward of £100 to anyone who uses the medicine three times per day for two weeks according to the printed direction supplied with each ball as directed and contracts a cold, influenza, or any other disease. The advertisement also claimed £1,000 as the deposited into the bank to showing their sincerity in the matter. After seeing the advertisement, Mrs Carlill purchased a ball and used it as directed but unluckily contracted influenza. She then sued the company to the money that promised in the advertisement.

The Court of Appeal said that the company would not only say they will pay £100 but they had deposited £1,000 in a bank to show their intention to create legal relations. It was not a contract “with the whole world” but with anyone who performed the conditions of the offer. The action of using the smoke ball was acceptance by conduct and using the smoke ball directed constituted consideration. The Court of Appeal found that is no difficulty in rejecting these various pleas. The Lord Justice Bowen was destroyed the argument effectively that an offer cannot be made to the world at large. Additionally, Bowen LJ said, ‘In order to make the contract binding there should be any notification of acceptance. It follows from the nature of the thing that the performance of the condition is sufficient acceptance without the notification of it, and a person who makes an offer in an advertisement of that kind makes an offer which must be read by the light of that common sense reflection.’

From the case above, it clearly shows that the advertisement made by Andy offering a reward for the return of his dog, Cassey is a unilateral offer that made to the world at large that when any person performs the act of returning his dog to him to form an acceptance to conclude a contract.

2 (a) Bolam, who response to the advertisement on Wednesday and bought a special equipment costing £500 in order to find the dog. He would like to claim the expenses that he purchases. According to case New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd, [1975] AC 154, Bolam cannot claim for the expenses that he purchase because the reward as advertised is for the return of the dog. If Bolam wants to claim the rewards, he should bring back the dog for Andy but not before return the dog.

2 (b) On the other hand, Stan, a shepherd, on Tuesday found the dog attacking his sheep. He captured the dog. At that time, he did not notice about that advertisement but he would be entitled to claim the reward if he aware about the reward. In the case of Williams v Carwardine [1833] 4B & Ad. 621 and R v Clarke [1927] 40 CLR 227(Australia), a person cannot claim the reward if he is unaware the offer but motivated by other reason. Unlike the case of Gibbsons v Proctor [1891] 64 LT 594, the police officer allowed to recover a reward although he did not know the existence of the reward. The latter case it must say is contrary to legal principle.

The next problem was whether Stan can claim the reward when he returned the dog to Andy on Friday. On Friday, Stan was brought the dog to the town of Oldcastle but it is improbable that he can claim that rewards because he was unaware the offer of the reward by Andy at that time. However, on Friday, he was told of the reward and he brought the dog to Andy to claim the reward. It does not have any matter that his knowledge of the reward came from a third party for example the people from the town because when that time he brought the dog to Andy; he was motivated by the reward. Therefore, he should be able to claim the reward.

However, Andy would like to argue that the offer of the reward had already removed when he put a notice in a local shop. In Powell v Lee [1908] 99 LT 284 case, it mention that acceptance of an offer must be communicated to offeror by offeree himself or authorized agent. This was referring to the case of a bilateral offer.

Nevertheless, in unilateral offer like argument will not able to be persuasive. According to Sir Frederick Pollock in his Principles of Contract (1950), he was distinguishing the acceptance of an offer and the performance of offer. Acceptance of offer is complete once the offeror has obviously commenced performance of the act. Performance of offer is complete when the act has done. Therefore, this meant that the offeror could not revoke the offer after the offferee has commenced performance of the act, though it is yet to be completed. As in the case Luxor (Eastbourne) Ltd v Cooper [1941] AC 108, the vendor company had instructed agents to sell the properties on its behalf and had agreed to pay commission on the completion of the sale but before the sales completed, the vendor company withdrew from the sale.

In the case of unilateral contract, the question will arise that how does the offeror know that the offeree has entered into the performance of the contract. He should be able to make the revocation of the offer through the same medium that he makes offer but not always contracted to the offer once he has put an advertisement of an offer. In Shuey v United States 23 L Ed 92 US 73 (US Supreme Court) case, the offer of a reward made by public proclamation before rights have accrued under it may withdrawn through the same channel that it was made. There is no contract arises under the offer until the terms are comply with it. Furthermore, to withdraw the offer, offeror must make sufficient notice of withdrawal before offeree accepted the offer.

Andy has made his withdrawal of the offer by placed a notice in a local shop distinct from the advertisement he put in the local newspaper. It is possible to argued that the notice in the local shop is not valid because it is intended for people that within the nearby of the shop rather than the whole town or the whole village and its surrounding area. Stan would likely to argue back that he did not notice about the withdrawal of the offer. Thus, Stand would able to claim for his reward.

2 (c). In addition, it does not matter that Stan is Andy’s younger brother because Stan is a separate legal person from Andy. As a result, Stan should be forcibly to the contract like other person.

2 (d). On the other hand, the question was arising that does it matter that Cassey died before it could returned to Andy. Andy would argue that the advertisement was looking for the return of the dog and did not mention that whether it is dead or alive. He would succeed if the argument is acceptance but it is definitely not be the case.

Referencing

Internet Site

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Civil justice system provides a platform for litigation between two private parties or organisations to be resource. Litigation arises following disputed in contracts, marriage, divorce, custody, probate, real estate or torts.

Books

• Furmston, M.P: Cheshire, Fitoot & Furnstons., 2007. Law of Law. 15th ed. UK: Pearson Longman
• Richard, P., 2007. Law of Contract. 8th ed. UK: Pearson Longman.
• Kelly, D. Holmes, Ann., Hayward, R., 2002. Business Law. 4th ed. Australia: Cavendish Publishing
• Keenan, D. Riches, S., 2002. Business Law. 6th ed. England: Pearson Education Limited.
• Tony, D. et al., 2002. ‘A’ level Law. 4th ed. UK: Butterworths LexisNexis.
• Kelly, D. Holmes, A. & Hayward, R., 2005. Business Law. 5th ed. Australia: Cavendish Publishing.