English_for_Lawyers_2011

Unit 2. Appellate Review. Section 2. Appellate Court Powers and Procedures

Use the phrases below:

To describe probability: (I’m sure/I don’t doubt … . I think/I expect … . I doubt/I don’t think … .)

To describe what the results will/may be: (As a result, we will have … . It could lead to … . It may result in … . … will be a direct result. It’d enable us to …. It’d cause … .)

To make recommendations: (…, so I advise/recommend/suggest … . I recommend/ advise/suggest … .)

ІV. WRITING

1.Use the information and language of this unit, your own background knowledge on the subject to write an essay answering the question:

Do you think the appellate review proceeding is important for administration of justice, protection of rights, freedoms and interests of individuals? Explain your point of view.

V. OVER TO YOU

To practice the language, complete the following activity in your own time.

1. WORD GAMES “Name the HIDDEN word”: − Find lost letters:

eroneus, apelate, juge, contepart, agument, lepfrog, recod, rute, overule, brifs, revers, dismis.

− Put the letters into the correct order to make terms connected with civil procedure:

DEMYER, GINREREAH, TIONEPTI, REANDM, PARCOUNTERT, AGRUE, FARIMF, HOPULD.

2.How many words referring to civil procedure do you know? Make up your own mind map:

421

PART VI. Civil Justice

3.Find information about international appellate courts and prepare a short report on the opportunities Ukrainian citizens have as to referring to international judicial institutions on civil matters.

NOTE: alternatively you may choose any problem in the sphere of civil procedure you are especially interested in to continue studying this subject by yourself and prepare a report to give in a students’ scientific conference.

422

Unit 3. Fundamental Changes in Civil Procedure in the UK. Section 1. Reforms in Civil...

Unit 3. Fundamental Changes in

Civil Procedure in the UK

Section 1. Reforms in Civil Procedure

I. LEAD-IN

1.Think about the subject of this section and get ready to discuss the following questions:

−To your mind what does the word “reform” mean?

−Do you know anything about reforms of Civil Procedure in the UK and changes they made to court proceeding?

−To your mind does the civil procedure of Ukraine need similar or some other kind of improvements?

Read the text to find extra information on the main changes in Civil Procedure Rules in England and Wales

TEXT 1

Notes:

1 in favour of – на чиюсь користь

REFORMS IN CIVIL PROCEDURE IN THE UK

In England and Wales the new procedural code, called Civil Procedure Rules (CPR), came into force in 1999 and now governs proceedings in the civil cases. The Rules made radical changes to civil process, namely the new procedure for managing civil cases was introduced where the judge became the case manager. Juries are now rare in civil actions, so normally the judge considers both points of law and questions of fact.

Claimants, previously referred to as plaintiffs, may seek a legal remedy for some harm or injury they have suffered. Most claims are initiated by the use of a claim form, which functions as a summons. Once a claim has been issued, a copy is served on, that is, delivered to the defendant with a response pack enclosing a form of admission and a form of defence for the defendant to either admit the claim, or to defend it. The response pack also

423

PART VI. Civil Justice

contains an acknowledgement of service form to confirm receipt of the claim, and a counterclaim form to be used if the defendant wishes to claim against the claimant. A defendant must respond within 14 days of service of the particulars of the claim. If the defendant does not respond, judgment may be given in favour of1 the claimant.

The new stage in civil litigation when a decision is made by the judge as to how the case is to be dealt with is called allocation. After each of the parties has completed and filed an allocation questionnaire, a case is allocated to one of three regimes or tracks by a procedural judge, depending on the value of the dispute as well as the nature of the remedy sought, and the likely complexity of the case (facts, law, or evidence): the small claims track (for cases worth less than £5,000), fast track (for claims of up to £15,000), or multi-track (more complex claims with a greater value).

Each case is actively managed by the judge on a timetable for litigation set and controlled by the court with the aims of encouraging and facilitating cooperation between the parties, identifying the areas in dispute, and encouraging settlement. The court can control progress of the case and even “strike out” the action; the judge is also entitled to make detailed instructions, known as practice directions, supplementing procedure rules.

Fast track directions might include disclosure, where the claimant tells the defence of any relevant documents in their possession. This is followed by inspection, initiated by a written request by the claimant to look at relevant documents held by the defence, and an exchange of witness statements. The multi track regime is intended to be flexible and does not have a standard procedure. In all regimes, parties are encouraged to settle their differences and for this purpose a stay in proceedings, that is, a temporary halt, may be agreed. The central feature of case management are case management conferences which are often conducted by telephone and give the judge and the parties the opportunity to review the process, to evaluate the progress of the case preparation and make decisions. If a defendant, for example, is ordered to pay by a judge and fails to do so, the claimant can enforce the judgment in the Magistrates’ Court.

II.COMPREHENSION

1.Compose a plan of the text in the form of questions and make notes to answer each item of the plan.

424

Unit 3. Fundamental Changes in Civil Procedure in the UK. Section 1. Reforms in Civil...

2.React to the following statements: agree or disagree. Support your answers by information or facts from the text.

1.The Rules made radical changes to civil process, namely the new procedure of appellate review.

2.After the reform jury plays a significant role considering both points of law and questions of fact.

3.Claimants must seek a legal remedy for some harm or injury they have suffered.

4.A claim form functions as a summons.

5.Procedure rules are supplemented by detailed instructions called practice directions.

6.In the fast track disclosure follows inspection and an exchange of witness statements.

3.Tell the group what information you have learnt from the text about:

a)the case manager;

b)a claim form;

c)a response pack;

d)allocation;

e)the small claims track;

f)fast track;

g)multi-track;

h)practice directions;

i)case management conferences.

4.Complete the following sentences according to the information from the text:

1.The new procedural code governs … .

2.Claims are initiated by … .

3.A response pack served on a defendant contains … .

4.Judgment may be given in favour of the claimant if … .

5.To allocate a case to one of three tracks a judge must consider … .

6.The court sets and controls …. with the aims of … .

7.The central feature of case management … .

425

PART VI. Civil Justice

III.VOCABULARY STUDY

1.Complete the definitions with the words from the text:

1.… – the process by which a claimant may look at written evidence held by the defence

2.… – the document in which the defendant makes a claim against the claimant

3.… … … – the document in which the defendant agrees to the claim made by the claimant

4.… … – the document starting a claim proceedings

5.… – the process by which the claimant is required to inform the defendant of documents they hold relevant to the claim

6.… … – the document giving evidence by someone who saw or heard something critical to the case

7.… … – the instructions given by a judge on how procedures should be carried out in a case

2.Explain the following terms and expressions in your own words:

a)claimant;

b)to admit the claim;

c)to defend the claim;

d)track;

e)timetable;

f)disclosure;

g)inspection.

3.Write the words/phrases associated with the participants of proceeding in the correspondent column:

4. What is the usual order of these events?

To allocate a case; to serve a copy; to file an allocation questionnaire; to respond a claim; to initiate a claim.

426

Unit 3. Fundamental Changes in Civil Procedure in the UK. Section 1. Reforms in Civil...

5. Make word combinations using words from two columns:

6.Use appropriate word combination from Ex. 5 and information from the text to answer the questions below:

1.How does a claim proceeding start?

2.What must a defendant do when he or she has been served with a claim?

3.If both parties want time to try to settle the dispute out of court, what should they ask the court to do?

4.What is the purpose of a case management conference?

5.If a defendant is ordered to pay a claimant’s costs but does not, what action can the claimant take?

IV. GRAMMAR FOCUS

1.Explain grammar phenomena of the underlined words in the text and translate them.

V. SPEAKING

1.Describe the process of a civil claim in your legal system as if to a client from a different system who wants to initiate a claim.

2.Work in groups. Think over the topic and prepare in advance sets of cards with written statements or questions to discuss (while preparing, make necessary notes using the information and language you have learnt from the texts of this unit, of the previous ones and additional sources of information).

427

PART VI. Civil Justice

In class compare and discuss your ideas with other members of your group. Each group can prepare a summary of the main points that have come up. The most interesting discussion point can be used to open up the discussion to the whole group.

There are some useful phrases to help you:

Say what you think: I think (that)/ To my mind/ To my point of view/ In my opinion/ My opinion on … is that / I suppose (presume, think) that … . Personally, I don’t think that … . It seems to me that… .

Invite your partners to speak: What about you,/ What’s your opinion,/ What do you think, (Anna)?

Agreeing: You (smb.) are (is) quite/absolutely/ right. I fully/ entirely/ completely/ agree with you. I suppose you may be right.

Disagreeing: I’m not sure you’re right about/ as to … . I’m afraid I can’t agree with you. I don’t really think so/ that … . I fully/ entirely disagree with …/ that… . I have different/ contrary/ opposed view/opinion.

Persuade your partners to agree: But don’t you agree that …? Yes, but I’m sure you’d agree that … . Don’t you think that …?

Reach a decision: So, do we all agree that …? Have we all decided that …? Well, most of us seem to think that … .

428

Unit 3. Fundamental Changes in Civil Procedure in the UK. Section 2. Basic Principles...

Unit 3. Fundamental Changes in

Civil Procedure in the UK

Section 2. Basic Principles of the Reforms

I. LEAD-IN

1.Think over the following questions and prepare to discuss them in class:

−In the continental law legal system, in particular in Ukraine, trial procedure is called “inquisitorial”. Could you explain why?

−Do you know in what countries trial procedure is called “adversarial”? Can you name its main features?

−Think about the main difference between “inquisitorial” and “adversarial” procedure.

−What do you know about the reform of Civil Procedure in the UK? For example: when it took place; who initiated reforms, the basic principles of the reforms, etc.;

−To your mind what was the main objective of the reforms?

Readthetexttofindanextrainformationonthepreconditions,themain objectives and strategies of the civil procedure reform in England and Wales

TEXT 2

Notes:

1 to commence with – розпочинатися з

2 amounts at stake in the dispute – сума спору

3 to introduce – вводити

4 with a view to – з метою

5 to be enforced – бути нав’язаним; застосовуватись примусово

BASIC PRINCIPLES OF THE REFORMS

Civil Procedure Rules (CPR) is the new procedural code, which was enacted in 1998 and revoked the Rules of the Supreme Court with effect

429

PART VI. Civil Justice

from 26 April 1999. The Rules, a result of the reforms proposed by Lord Woolf’s Access to Justice (Final Report) 1996, now govern proceedings in the civil cases of the Court of Appeal (Civil Division), the High Court, and the county courts. The Civil Procedure Rules were designed to improve access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers. Unlike the previous rules of Civil procedure, the CPR commence with1 a statement of their Overriding Objective, both to aid in the application of specific provisions and to guide behaviour where no specific rule applies.

The Woolf Interim Report (1995) is a very valuable document in its statement of the objectives of a civil justice system, on the failings of the approach existed before and its radical proposals for reform.

The main idea of the civil procedure reform is to render civil justice system more efficient, namely to make it less expensive and more rapid. To achieve these goals it was proposed to shift away from the adversarial culture to judicial management and to encourage alternative dispute resolution (ADR).

The proposals centred on four strategies or principles:

(1)greater judicial management of the process including, notably, tighter and properly enforced timetables and a greater control on discovery and the use of expert evidence (both of which have an escalating effect on costs);

(2)the allocation of different types of cases, normally determinable according to the amounts at stake in the disputes2, to different sets of management rules;

(3)the encouragement of early settlements and resort to ADR procedures;

(4)a greater transparency of legal costs.

Thus the main proposals envisaged a fundamental shift along the spectrum of judicial culture, away from a purer adversarial approach to a more inquisitorial approach. The Rules in fact made radical changes to civil process of the correspondent courts. Under the new regime the judge becomes a case manager. The court sets a timetable for litigation, with the parties being under an obligation to the court to adhere to timescales which control the progress of the case. Procedure rules are supplemented by detailed instructions made by the judge which support the rules, known as practice directions, and pre-action protocols.

430