Reflections from Former Masters of the Rolls on Managing Civil Justice

2020 ◽  
pp. 91-104
Author(s):  
Kate O’Regan
Keyword(s):  
Human Rights ◽  
National Security ◽  
Justice System ◽  
September 11 ◽  
Fair Trial ◽  
Judicial Discretion ◽  
Civil Justice ◽  
Post September 11 ◽  
The Right ◽  
Civil Justice System

This edited conversation between Professor Kate O’Regan of the Bonavero Institute of Human Rights and Lord Neuberger and Lord Dyson reflects on their Lordships’ time as judges and Masters of the Rolls managing the civil justice system in England & Wales. Subjects include: the value of the overriding objective; whether procedural rules should be prescriptive or allow for judicial discretion; the costs and funding crisis facing the justice system, especially for those of limited means, including how legal disputes should be funded and who should be funding them; and how to balance the right to a fair trial with national security interests in a post-September 11 world.

Referral fees – the business of access to justice

Legal Studies ◽  
2012 ◽  
Vol 32 (1) ◽  
pp. 109-131 ◽  
Author(s):  
Andrew Higgins
Keyword(s):  
Justice System ◽  
Public Funding ◽  
Legal Rights ◽  
Access To Justice ◽  
Legal Services ◽  
Civil Justice ◽  
Better Regulation ◽  
The Government ◽  
The Right ◽  
Civil Justice System

The paper examines the controversial issue of referral fees for personal injury claims. It looks at the function of referral fees in the civil justice system, their relationship to the guarantees of access to court and the right to seek legal assistance in ECHR Art 6, and the debate about promoting access to justice or a litigious society. It examines the experience of the referral fees market in England and Wales, where the costs of referrals have risen dramatically and there is concern that referrers are auctioning their customers to the highest bidder rather than helping them find competent lawyers. Sir Rupert Jackson recommended banning referral fees in his report on the costs of civil litigation, and the Government has announced it will implement this recommendation. The paper considers the potential effects of a ban on competition in the legal services market and its compatibility with UK and EU competition law. The paper argues that a combination of better regulation of the industry and proper regulation of costs rules is a better and more proportionate way of controlling legal costs and the quality of legal services than an outright ban. While referral fees have not delivered all the benefits one would expect from a for-profit independent referrals service, they can help people obtain information about their legal rights, and competent lawyers to enforce them. This service is particularly valuable given that the state has substantially cut public funding of the civil justice system in recent years.

Jeffrey O’Connell and the Market in Tort Claims

2013 ◽  
Vol 6 (1-2) ◽  
Author(s):  
Anthony J. Sebok
Keyword(s):  
Justice System ◽  
Transitional Period ◽  
Civil Justice ◽  
Insurance Scheme ◽  
Theoretical Assumptions ◽  
Tort System ◽  
Tort Litigation ◽  
Fault Compensation ◽  
The Right ◽  
Civil Justice System

AbstractThis article examines a transitional period in Jeffrey O’Connell’s long and productive career as an observer and critic of the American civil justice system. By the early 1970’s O’Connell had begun to abandon enterprise liability as a solution to the waste and undercompensation he saw in the tort system. Eventually O’Connell would develop solutions that focused on constraining plaintiffs’ attorneys, and less on no-fault compensation. Before reaching this point, O’Connell proposed a no-fault insurance scheme that would be paid for by fault-based tort litigation. This proposal, which he called “elective first party no-fault insurance” (“EFPI”) is the focus of this article. In EFPI tort suits would not disappear, and damages would not be limited, but litigation would be conducted by insurers who had been assigned their insured’s lawsuits. This article describes how this novel tort reform would work, and explores the theoretical assumptions upon which it is based. One assumption in particular, which is examined, is that a market in tort litigation could be socially efficient if the right sort of plaintiffs’ lawyers were recruited to conduct it. Finally, this article points out that O’Connell called for the repeal of champerty laws at least a decade before many other modern legal academics focused on the potential of a market in litigation.

scholarly journals The Right to a Fair Trial and the Military Justice System in Pakistan

2016 ◽  
Vol 7 (2) ◽  
pp. 330-362 ◽  
Author(s):  
Niaz A Shah
Keyword(s):  
Human Rights ◽  
Justice System ◽  
Fair Trial ◽  
Human Rights Law ◽  
Military Justice ◽  
British Military ◽  
The Right ◽  
The Military

This article analyses the military justice system of Pakistan to determine to what extent it is compatible with fair trial standards recognised by human rights law and the constitution of Pakistan. It sets out the fair trial tests and apply them to the military justice system of Pakistan. The analysis reveals that the military justice system blatantly violates fair trial standards: it is part of the Executive and is neither independent nor impartial. It runs as a detached parallel departmental justice system to the national justice system. The author also argues that the majority judgement in the 2015 Military Courts Case did not apply the correct legal tests and wrongly held that the military justice system meets the fair trial standards. It is per in curiam. The author offers recommendations for reforming the military justice system proposing that Pakistan might learn from the successful reformation of the British military justice system.

scholarly journals Seeking Compatibility in Preventing Crime with Artificial Intelligence and Ensuring a Fair Trial

2021 ◽  
Vol 15 (1) ◽  
pp. 25-52
Author(s):  
Kelly Blount
Keyword(s):  
Artificial Intelligence ◽  
Human Rights ◽  
Criminal Law ◽  
Justice System ◽  
New Technologies ◽  
Fair Trial ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Direct Effects ◽  
The Right

The justice system is increasingly reliant on new technologies such as artificial intelligence (AI). In the field of criminal law this also extends to the methods utilized by police for preventing crime. Though policing is not explicitly covered by Article 6 of the European Convention of Human Rights, this article will demonstrate that there can be adverse effects of policing on fair trial rights and make the analogy to criminal investigations as a recognized pre-trial process. Specifically, it will argue that policing that relies on AI to predict crime has direct effects on fair trial processes such as the equality of arms, the presumption of innocence, and the right to confront the evidence produced against a defendant. It will conclude by challenging the notion that AI is always an appropriate tool for legal processes.

The Civil Procedure Rules at 20

2020 ◽  
Keyword(s):  
Human Rights ◽  
Empirical Research ◽  
Judicial Review ◽  
Justice System ◽  
Civil Procedure ◽  
Civil Justice ◽  
Permanent Record ◽  
Collective Redress ◽  
20Th Anniversary ◽  
Civil Justice System

The book provides a series of presentations and papers to mark the 20th anniversary of the CPR coming into force, many of which were delivered orally at the CPR at 20 Conference at the Bonavero Institute of Human Rights, Mansfield College, Oxford in 2019. The presentations and papers have been edited and extended to provide a permanent record available to a wider audience. The book considers the successes and failures of the CPR, and current challenges faced by those designing, administering and using the civil justice system. It covers a range of topics including: the digitisation of the civil justice system, the overriding objective, principles of proportionality, disclosure, collective redress, judicial review rules, closed material proceedings and costs and funding rules. The book contains doctrinal, theoretical and empirical research and analysis about the use of the civil procedure rules and the civil justice system more broadly.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

The Inviolability of Diplomatic Agents in the Context of Employment

2017 ◽  
Author(s):  
Lisa Rodgers
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Employment Contracts ◽  
Domestic Servants ◽  
Recent Developments ◽  
Diplomatic Immunity ◽  
The Right ◽  
The Way

‘Ordinary’ employment contracts—including those of domestic servants—have been deemed to attract diplomatic immunity because they fall within the scope of diplomatic functions. This chapter highlights the potential for conflict between these forms of immunity and the rights of the employees, and reflects on cases in which personal servants of diplomatic agents have challenged both the existence of immunity and the scope of its application. The chapter examines claims that the exercise of diplomatic immunity might violate the right to a fair trial under Article 6 of the European Convention on Human Rights and the way in which courts have dealt with these issues. The chapter analyses diplomats’ own employment claims and notes that they are usually blocked by the assertion of immunity, but also reflects on more recent developments in which claims had been considered which were incidental to diplomatic employment (eg Nigeria v Ogbonna [2012]).

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

Procedural fairness: Between human rights law and social psychology

2021 ◽  
pp. 092405192199274
Author(s):  
Cathérine Van de Graaf
Keyword(s):  
Human Rights ◽  
Procedural Justice ◽  
Well Being ◽  
Fair Trial ◽  
European Convention ◽  
Public Confidence ◽  
Social Psychological ◽  
Justice Research ◽  
The Right ◽  
The Impact

Fair procedures have long been a topic of great interest for human rights lawyers. Yet, few authors have drawn on research from other disciplines to enrich the discussion. Social psychological procedural justice research has demonstrated in various applications that, besides the final outcome, the manner in which one’s case is handled matters to people as well. Such research has shown the impact of procedural justice on individuals’ well-being, their acceptance of unfavourable decisions, perceptions of legitimacy and public confidence. The ECtHR has confirmed the desirability of these effects in its fair trial jurisprudence. Thus far, it remains unclear to what extent the guarantees offered by Article 6(1) of the European Convention on Human Rights (the right to a fair trial) coincide with the findings of empirical procedural justice research. This article aims to rectify this and uncover similarities between the two disciplines.

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