This chapter addresses the issues and arguments surrounding access to justice. The chapter considers changes and proposed changes to legal aid provision. There is an outline of the basic principles relating to public funding in both civil and criminal cases. Different methods of funding civil legal representation are discussed including CFAs and DBAs. Organisations involved in giving legal advice, including Citizens Advice and law centres, are included in the discussion about the availability of legal advice.
Chapter
10. Access to justice
Chapter
10. Access to justice
This chapter addresses the issues and arguments surrounding access to justice. The chapter considers changes and proposed changes to legal aid provision. There is an outline of the basic principles relating to public funding in both civil and criminal cases. Different methods of funding civil legal representation are discussed including CFAs and DBAs. Organizations involved in giving legal advice, including Citizens Advice and law centres, are also included in the discussion about the availability of legal advice.
Chapter
10. Access to justice: paying for legal services
This chapter focuses on how legal services, in particular litigation, to the less well off and the poor are paid for. It considers first the radically changed shape of the legal aid scheme and publicly funded legal services in recent years and then discusses the developments designed to control the costs of litigation. It summarizes new ideas for the funding of litigation and improving access to justice. It considers the contribution of the legal profession and approaches to re-engineering the system, finally asking whether new processes—alternatives to the courts—might be better at providing cost effective and proportionate dispute resolution services.
Chapter
7. Acquiring Ownership
This chapter discusses the acquisition of ownership in Roman law. It covers derivative modes of acquiring ownership; original modes of acquiring ownership; and gifts. The methods of acquiring ownership inter vivos can be classified in a number of ways. For example, some methods can be described in modern civilian systems as ‘original’—where the acquisition of ownership did not depend on there being a prior owner—whereas others were derivative, i.e. where ownership was derived from a prior owner. Or some methods were formal, others causal: in the former case ownership passed because of the use of particular form and ceremony, whereas in the latter case ownership depended on the ground or ‘cause’ of the acquisition.
Chapter
6. The administrative justice system
This chapter focuses on administrative justice. It reflects on the nature of administrative law and the role it plays in modern society, overseeing the relationship between the citizen and the state. Once again adopting the holisitic approach, the chapter discusses not only the role of the courts, but also the tribunals, ombudsmen, and other bodies and processes that together make up the institutional framework of administrative justice. It notes some of the key changes being introduced as a result of the Transformation Programme and the response to the COVID-19 pandemic. It also considers the particular responsibilities of Members of Parliament in holding the Government to account. In addition, it asks who has general oversight of the system and whether current oversight arrangements are adequate.
Chapter
13. Advocacy and mooting
Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard
This chapter focuses on advocacy skills required during academia and in practice. The section on academia considers persuasive oral communication and confidence. It provides guidance on how to succeed both in mooting and in criminal advocacy competitions. It examines how to undertake effective case analysis using the IRAC model, and how to prepare skeleton arguments and case bundles. Examples of skeleton arguments are provided. The section on professional advocacy considers professional roles, rights of audience, areas of practice and activities. It covers practicalities such as etiquette, dress, conduct and ethics. The progress made towards a move to digital courts is also explored.
Chapter
1. Aims, themes, and structure
This chapter sets out the basic aims, themes, and structure of this book which are to provide an introductory account of the English legal system, to note how it has developed in recent years, and to consider how it may develop in future. Part II raises fundamental issues about the social functions of law and the legitimacy of law; and considers the institutional framework within which law is made. Part III looks at the different contexts in which law is developed and practised. Part IV looks at the provision and funding of legal services. Finally, Part V offers reflexions on a system in flux.
Chapter
16. Alternative dispute resolution
Alternative Dispute Resolution (ADR) describes any method of resolving legal disputes other than through litigation in the courts or tribunals. ADR includes arbitration, mediation, adjudication, conciliation, med-arb, and early neutral evaluation/expert determination. This chapter explains the various forms of ADR, why ADR exists, its many advantages (compared to litigation), and its disadvantages. The chapter examines case law dealing with the ‘cost consequences’ of a failure by one party to a legal dispute to engage in ADR when presented with the opportunity to do so. The chapter considers whether ADR should be compulsory and the extent to which the parties to a dispute, having agreed to resolve their dispute through ADR, can be compelled to honour that agreement.
Chapter
19. Alternative Dispute Resolution
This chapter considers alternative dispute resolutions (ADR), which are ways that a dispute can be settled outside the court process. The chapter considers the growth of ADR and how the courts now require litigants to consider ADR before commencing legal action. The courts have wide powers to encourage ADR and this chapter considers these powers and why the courts try to encourage ADR. The key forms of ADR are then presented, together with an analysis of their strengths and weaknesses.
Chapter
11. Alternative dispute resolution
This chapter examines the ethical issues raised by alternative dispute resolution (ADR). It first looks at the process of negotiation, which is the way in which lawyers resolve most disputes. It then considers other forms of ADR, including mediation and, briefly, arbitration. The chapter highlights the advantages and disadvantages of these processes. There are particular concerns where one party is in a stronger bargaining position, for example in a family case which has involved domestic abuse. There is also much debate over the role a mediator should play, andin particular over whether a mediator should take a neutral role or persuade the parties to reach what they regard as a fair settlement. It also considers what attracts clients to use these forms of dispute resolution.
Chapter
16. Alternative dispute resolution
Alternative Dispute Resolution (ADR) describes any method of resolving legal disputes other than through litigation in the courts or tribunals. ADR includes arbitration, mediation, adjudication, conciliation, med-arb, and early neutral evaluation/expert determination. This chapter explains the differences between the various forms of ADR, why ADR exists, its many advantages (compared to litigation), and its disadvantages. The chapter examines case law dealing with the ‘cost consequences’ of a failure by one party to a legal dispute to engage in ADR when presented with the opportunity to do so. The chapter considers whether ADR should be made compulsory and the extent to which the parties to a dispute, having agreed to resolve their dispute through ADR, can be compelled to honour that agreement.
Chapter
15. Answering problem questions
This chapter focuses on the skills needed to use the law to answer a problem question. It guides students through the process of analysing a scenario to identify the relevant issues to ensure that their answers are comprehensive and do not miss any important points. It outlines strategies to ensure that the law is applied effectively, and that good use is made of supporting authorities.
Chapter
15. Applying ethical theories
This chapter explores the application of the principles discussed in the preceding chapters to specific cases. It imagines how four lawyers might respond to three different scenarios. The first is taken from criminal law. The other two are taken from commercial law and family law. The four lawyers represent different schools of thought on lawyers’ ethics. This gives readers the chance to think through how taking a different general ethical approach might impact on their response to a particular scenario. It also might help readers more clearly identify which broad ethical theory they support. It shows how ethical disputes can have considerable practical significance.
Chapter
9. Assessments and Assignments in Law
This chapter looks at some of the many different forms of assessment a law student may come across, depending on where they are studying and the subjects they choose. These include coursework, exams, multiple-choice tests, advocacy or other oral presentations, posters, and reflective reports. The chapter also considers dissertations and other research projects, and group work for assessment. The chapter gives advice on how to approach different types of assessment to enhance their chances of success. Specific guidance is also provided on responding to problem questions and essays, whether in coursework or exams including consideration of the IRAC and CEEO methods.
Chapter
9. Authorities – advanced considerations
This chapter discusses what it means to ‘handle precedent’, to ‘interpret statutes’, and to do justice ‘fitted to the needs of the times in which we live’. It provides answers to the following questions: When and how should policy arguments be used? How should foreign case names be pronounced in a moot? What is the correct way to refer to a case? Is it acceptable to give a personal view of the relevant law? When is an authority binding on a moot court? How can one escape from an inconvenient authority? In what circumstances can a case be overruled? How and when can a case be distinguished in law from another? How and when can a case be distinguished on its facts from another? What is the distinction between a judge's finding of fact and his or her decision on the law? What is the status of a judgment of the Divisional Court? Is a ‘Jessel’ better than a ‘Kekewich’? When is a change in the law a matter for Parliament and when is it a matter for the courts?
Chapter
8. Books, journals, and official publications
This chapter describes the role of books (student textbooks, cases and materials books, monographs, practitioners’ books, legal encyclopedias and digests, dictionaries, revision guides), journals (general journals, specialist journals, practitioner journals, foreign journals), and official publications (Command Papers, Bills, Parliamentary papers, Parliamentary debates, Law Commission reports) amongst the secondary sources which may be encountered during legal studies.
Book
Paul J. du Plessis
Course-focused and comprehensive, Borkowski’s Textbook on Roman Law provide an accessible overview of the key areas on the law curriculum. Borkowski’s Textbook on Roman Law provides an account of Roman private law and civil procedure, with coverage of all key topics, including the Roman legal system, and the law of persons, property, and obligations. The text sets the law in its social and historical context, and demonstrates the impact of Roman law on our modern legal systems. For the sixth edition, the text has been comprehensively reviewed and references to a wide range of scholarly texts have been included, to ground the account of Roman law firmly in contemporary scholarship. Examples from legal practice have been added where these illuminate legal doctrine. The text has been updated to reflect current scholarly opinions. References to the latest legal scholarship on Roman law have been included to reflect the most recent developments in the field.
Chapter
9. ‘Bringing Rights Home’: Legal Method and the Convention Rights
In the twenty-first century, two important pan-European forces to which English law has been subject are the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) 1998. This chapter discusses the following: the scope, outline, and enforcement of the ECHR to identify and protect fundamental human rights and freedoms and the balancing of these freedoms against the sovereignty of Parliament; its incorporation into the HRA 1998; incorporation under the devolution Acts; the consequences for legal method; and practical and conceptual issues raised by the HRA 1998 around legal research and argumentation. It closes by looking at the prospects of a ‘British Bill of Rights’.
Chapter
13. Business ethics
This chapter examines the issue of business ethics. It first explains why business ethics matter. It then considers the notion of notion of corporate responsibility, and sets out policies and practices to ensure that businesses have an ethical dimension to their decision-making. The chapter explores the role of businesses in promoting worldwide social goods. It also considers the role of the lawyer in helping businesses to behave in an ethical way. This can be a particular challenge for in-house lawyers who may find a tension between their role as an employee of a firm and as a voice to ensure good practice.
Chapter
19. Businesses and the business environment
Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard
This chapter discusses the following: the importance of commercial awareness in understanding how businesses work; the main types of business structure (sole traders, partnerships, public and private companies), their organisation, and management; factors influencing management decisions; the environment in which businesses operate. It examines different markets, sectors, and industries, and the role of consumers within these markets; the increasing complexity of supply chains from business to consumer and the problems they face; the impact of competition within those different markets; and the challenges facing businesses within increasingly competitive global markets, including the advances in technology and environmental, social and governance issues (ESG).
