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INTRODUCTION TO BUSINESS LAW The Court Structure and the Legal Players Aims and Objectives: This session

n will enable students to appreciate the Court Structure in England and Wales. In particular, we will be analysing the roles and duties of various courts. In addition, we will also be looking into the appointment and the role of the judiciary in the light of access to justice. A. The Court Structure of England and Wales1 Courts could be defined as places concerned with settling legal disputes. HOWEVER, it is essential to distinguish courts from tribunals or any other forms of alternative dispute mechanisms. (Tribunals and Alternative Dispute Mechanism will be covered in the next chapter)

See further http://www.judiciary.gov.uk/keyfacts/judiciary_organisation_chart/chart.htm

T.G Khoo AIBS 1.2 2010/11

B. The Courts In depth (i) Magistrate (Criminal) Deal with 3 separate categories of cases. (Summary, Offences Triable Either Way OR Indictable Offences) Presided by Stipendiary OR Lay Magistrates. Qualification to be a lay magistrate: - Over 18, Live within 20 miles from the court, No previous criminal record, No need for previous or any legal background. Deals with 95% of criminal cases.

T.G Khoo AIBS 1.2 2010/11

(ii)

Crown Court (Criminal) Listen to Class 1 to Class 4 types of cases. Presided by High Court judges, Recorders, Assistant Recorders or Circuit judges. Trial by jury* (See later)

Also see Sir Robin Aulds Report delivered in 2001 with the aim of improving the efficiency of the Crown Court. (iii) County Court (Civil)

Options to commence case in either county court or the High Court (Chancery Division or the Family Division) Limitation when it comes to awarding damages. Presided by Circuit OR District judges. Dealing with Contractual Issues, Equitable Matters OR Personal Injuries (iv) High Court (Both Criminal and Civil)

Can be sub-divided into the Queens Bench Division, Chancery and Family Division. The QBD listen to criminal cases ONLY. Presided by Puisne judges. Consider ethnic and racial participation. The Court of Appeal (Criminal and Civil Division)

(v)

Presided by Lord Justices of Appeal and Master of the Rolls. Listen to all cases on appeal from the High Court. The House of Lords (The Supreme Court)

(vi)

Not synonymous to the House of Lords political.

C. The Legal Players Question: Who are they? As briefly discussed, legal players include all judges sitting in various courts. This also includes lay person (Lay Magistrates) and juries.

(i) Judges There have been criticisms in relation to the appointment of judges. (See further on Sir Leonard Peach report in 2001)

T.G Khoo AIBS 1.2 2010/11

Letter from Sir Colin Campbell at the Commission for Judicial Appointments to the Lord Chancellor (then Lord Falconer) on the 21st October 2005 Oxford educated candidates fares disproportionately better than those educated elsewhere. There is a proven statistical fact. It also correctly recorded that your decisions, in the two instances where you disagreed with your officials advice about who should be appointed One of the biggest challenges in this area is to ensure that the selection process is no longer susceptible to perceptions that people fitting a certain stereotype, or mould are more suitable for the judicial office The Reform: - Constitutional Reform Act 2005. Do they work? (ii) Juries The main aim of a jury is to try to and sentence serious offences triable on indictment for murder. It is not necessary for the juries to possess the required knowledge in order to become one.

Jury trial is a hallowed democratic institution and a citizens right in all serious cases Sir Robin Auld; Fraud and other Complex Cases. Is the trial by jury living up to its expectations? D. Alternative Dispute Mechanisms Aims and Objectives: This session will enable students to understand the role of alternative dispute mechanisms. In particular, we will be looking into arbitration, mediation / conciliation (Alternative Dispute Resolution) In addition, we will briefly consider the advantages and disadvantages of resolving disputes using the above mechanisms. A. Alternative Dispute Resolution (ADR) The Government has been keen to promote alternative methods of dispute resolution and the current civil procedure rules place considerable emphasis on their use to avoid court litigation. 1.4 Civil Procedure Rules

T.G Khoo AIBS 1.2 2010/11

In addition, the government hopes to extent funding to encourage the use of ADR. (Access to Justice Act 1999) There are several types of ADR and this includes arbitration, mediation, conciliation, expert determination, Med-Arb. For the purposes of this chapter, we will be concentrating on arbitration, mediation and conciliation. (i) Arbitration This is a procedure where both sides allow a third party, the arbitrator to decide. This person will often be a lawyer or other expert. The parties agree to be bound by this decision.

(ii)

Mediation This involves the parties appointing a mediator to help them to reach an agreed decision.

(iii)

Conciliation This is similar to mediation except the conciliator takes a more interventionist role and suggests possible solutions. At present, it is regarded as a form of mediation.

Advantages of ADR Cost Accessibility Speed Expertise Conciliation between Parties

Disadvantages of Parties Imbalance of power

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Lack of Legal Expertise No Precedent Enforceability

B. Tribunals The growth of tribunals can be traced back to implementation of the Report of the Committee on Administrative Tribunals and Enquiries by Franks Committee in 1957. Since then, tribunals have played an important role in dispensing justice in a large number of cases. Though integral part of the ordinary legal process, tribunals are not part of the court structure. Ask yourself: - What are the examples of tribunals? The advantages and disadvantages of tribunals are largely similar to the ones in Alternative Dispute Mechanism. Like court structure, the tribunals have been subject to various criticisms. Sir Andrew Leggatt2 (Leggatt Report 2000) has undertaken a major review of the existing tribunal system.

We will be looking more on this during the tutorial session

T.G Khoo AIBS 1.2 2010/11