Chapters overview:

1. Doctrine of Binding Precedent [5,6]

2. Statutory Interpretation [7,8]
3. Civil Justice System [15,16]
4. Criminal Justice System [18,19,20]
5. Judiciary [13,14]

Essay structured points:

1. Introduction - Rewrite the question/paraphrasing (breakdown q)

- Brief introductory setup (3/4 sentences)

2. Conclusion - Should never consist of any new information

- Summarise your explanations

3. Body content - State all possible references

4. Case law analysis - Minimum 12/15 cases must be cited

5. Articles/Journals - At least 1/2 articles/journals with name and reference

6. Quotations - Quotations must be used (statements quoted by judges)

7. Other references - newspapers, judge’s speech, reference etc.

Your essay should contain:

(a) Linking words to maintain paragraphing

(b) No ‘all i know’ answers (must be specific, precise)
(c) Question angles must be understood (avoid general concepts at whole)
(d) No ‘opinion type’ answers/no first person uses in the language

Doctrine of Binding Precedent

Introduction:

The law of England and Wales primarily comes from two sources: the parliament and the courts.
Legislation is a very broad term describing all the law made by or under powers granted by the UK
parliament. Legislation made by parliament itself in the form of Acts of Parliament is described as
primary legislation, which is the highest form of UK law. As long as a bill is passed by the House of
Commons and House of Lords and receives royal assent, the resulting Act of Parliament is recognized
as law.

On the other hand, common law is in effect by way of the legal precedent that is made by judges
sitting in court. Unlike statutory provisions which are laws that are codified as Acts of Parliament, the
common law is constantly changing. The decisions of judges in cases brought before the courts are a
major source of law. Such decisions are recorded in law reports and are used by lawyers in
determining what the law is.

One of the requirements of a just legal system is that decisions of courts are consistent in that cases
are treated alike so that litigants can, to some extent, predict the likely outcome of cases. It is normal
for judges in all legal systems to seek to reach decisions which conform to earlier cases. In the
common law system, however, this principle is elevated to a formal system of binding precedent
which requires judges to follow the decisions of earlier courts in certain circumstances.

Doctrine of binding precedent is a theory which states that previous decisions and past examples are
mandatory to follow. In the English legal system, the doctrine of binding precedent has been an
outcome of the historic development of common law. The lawyers need to search for a principle of
law on which a previous case was decided and consider whether application of the principles to the
instant case of the cases are sufficiently similar. The doctrine is based on the principles of stare decisis
which means to stand by previously decided cases. The requirement of treating cases alike is to ensure
consistency, predictability and uniformity. This supports the idea of fairness and provides certainty in
the law.

Vertical and Horizontal Precedent

In English law, courts follow orderly behaviour in terms of making decisions. One of the requirements
of a fair legal system is the consistency of court decisions that is handling similar cases in the same
way to ensure predictability. Courts tend to follow the decisions of higher courts to properly enforce
justice. Referring to the dogma of the doctrine of binding precedent, it is obligatory for the judiciary
to follow the past decisions vertically and horizontally maintaining the hierarchy of the courts. The
traditional attitude of the judiciary is based on the principle of ‘stare decisis’ which is that the courts
uphold its previous decisions. This principle has two aspects–

(i) Lower courts must follow the decisions given by the higher courts (vertical precedent).
(ii) Later courts must follow the decisions given by earlier courts of the same level (horizontal
precedent).

Vertical precedent refers to the extent to which the lower courts must follow the judgements of the
higher courts including the Court of Appeal unless there are reasonable grounds for distinguishing the
case based on its fact. The reinforcement of the need for the vertical precedent to be strictly followed
was seen in the case of (Davis v Johnson 1978). The Court of Appeal also considered the matters of
vertical precedent in the case of (B v B) and (Cantliff v Jenkins).

The Supreme Court of the UK has replaced HoL as the country’s highest court following CRA 2005.
The Supreme Court will follow the same precedent practices as the HoL and will show the same
degree of flexibility.
The issue of horizontal precedent below the level of the HoL, now SC is very important. There will be
many courts sitting in the Court of Appeal at the same time. Lord Denning argued in the case of
(Gallie v Lee), that the Court of Appeal need not to be absolutely bound by its own decisions; a large
number of reported judgements, and if the court of Appeal was not to follow its own earlier decisions,
this would inevitably lead to confusion and a degree of uncertainty in the law.

The basic principle of precedent in the civil division of the Court of Appeal is that it is bound by its
own previous decisions. If the lower courts deviate too easily from the reasoning of the higher courts,
it will reduce the certainty of the outcomes and the consistency of the treatment, which will not favour
the rule of law. However, if the court believes that the law has been misused in the precedent, as Lord
Goddard CJ stated in (R v Taylor) that the principles of (Young v Bristol Aeroplane) generally apply,
but the court also has a broader power of departure.

The discussion implies that courts tend to refer to previous examples to maintain the consistency and
certainty of the law. Litigants in the judicial limbs expect the court to ensure that justice is properly
served to maintain hierarchy and judicial order within the legal system. However, it may not always
be desirable to follow the principles of continuity and certainty to ensure justice because too strict
adherence to precedents can lead to absurdity and impediment to the proper development of common
law.

It means that the courts tend to go for previous examples so that law is consistent and certain. The
expectation of litigants from the judiciary is that courts will ensure justice is done properly while
maintaining hierarchy and judicial order within the legal system.

However, following the consistency and certainty principles to ensure justice may not always be
desirable because too rigid adherence to precedent may lead to absurdity and create impediment to
proper development of common law.

Practice Statement 1966

The doctrine of binding precedent represents a constraint on judicial decision making and there is a
distinction between precedents that a judge may choose to follow (persuasive precedent) and those
which a judge is bound to follow (binding precedent).

In the English legal system, all courts adhere to the principle of stare decisis because they always
recognized that it is important to do so in order to maintain the consistency and certainty of the law.
For example, the HoL which is the highest court in the country used to follow its previous decisions
in a binding manner. However, since 1966 by virtue of the practice statement, the HoL was able to
overrule its earlier rulings when they felt it was correct to do so. In (Austin v Mayor Burgesses of the
London Borough of Southwark), Lord Hope stated that the HoL in application to the 1966 practice
statement is on departure from its own previous decisions and is equally applicable to the Supreme
Court.

In (London Street Tramways v London County Council), the HoL considered that the highest court of
the UK should also be bound by its previous rulings to give certainty to the law and put an end to the
litigation. Although this doctrine seems rigid in nature, it subsequently deviated from the exercise
since the HoL felt that it should reconsider its own past method of precedent.
In (London Street Tramways), the HoL confirmed that it would in future be bound by its own
previous decisions to bring finality to cases and legal issues so that they would not be continually
reargued. However, it was felt that the aspect of the decision was to constrain the development of the
common law and so the famous ‘practice statement’ was declared by Lord Gardiner LC in the year of
1966. They stated that they will follow their previous decisions but may deviate from them for greater
interest of justice and development of law. In practice statement 1966, it was confirmed that the then
HoL will depart from previous decisions when it is right to do so.

In 1968, the first use of the practice statement took place in the case of (Conway v Rimmer) and it
only involved technical law on discovery of documents. In 1972, the first major use of the practice
statement took place in the case of (Herrington v British Railway Board) on the duty of care owed to
child trespassers. Between 1980s and 1990s the HoL showed an increased willingness to use practice
statements to overrule decisions e.g. (R v Shivpuri) and (Pepper v Hart). In 2003, a practice statement
was used to overrule the decision in (Caldwell) on recklessness in criminal law. In 2010, the Supreme
Court in the case of (Austin) confirmed that the practice statement applied to the Supreme Court the
same way it did to HoL. In 1996, this practice statement allowed the HoL to change the law when it's
believed that an earlier case was wrongly decided. It had the flexibility to refuse to follow an earlier
case when it appeared right to do so. Despite, great reluctance to use practice statement in the
beginning, with time there was an increase of willingness of using practice statement as can be seen
through multiple cases, few more examples are (Miliangos v George Frank Ltd. 1976), (Merton
London Borough 1977), (Horton v Sadler and another 2006) and (R v R and G 2003).
The key points that emerged from the practice statement were that–

1. The court would only rarely depart from an earlier decision.

2. The court would be most likely to use the new freedom in situations where there had been a
significant social change so that a precedent which was outdated or inappropriate could be
changed to modern social conditions, values and practices.
3. The court would be likely to depart from an earlier decision if there was a need to keep
English common law in step with the law of other jurisdictions.
4. The court would be likely to depart from an earlier decision for the development of common
law and interest of justice.

Between 1966 and the replacement of HoL by the Supreme Court, the practice statement was
explicitly invoked in multiple cases including (Conway v Rimmer) overruling (Duncan v Commell
Laird Co.), (Herrington v British Railway Board) overruling (Robert Addie Sons Ltd. v Dumbreck),
(R v Shivpuri) overruling (Anderton v Ryan), (R v G) overruling (R v Caldwell) and Murphy v
Brentwood DC) overruling (Anns v Merton LBC).
Louis Blom-Cooper described the change brought about by the practice statement as being as if the
Lords dropped a pebble into the judicial pool that produced not merely a few ripples but also a
seismic wave in the English judicial thinking. Following the passage of the Constitutional Reform Act
2005, the Supreme Court of the UK was established in 2009. It follows the precedent of its
predecessor. In (Austin v Mayor) Lord Hope writing for the majority commented on the practice
statements applicability to the new court by stating that the Supreme Court has not thought it
necessary to re-issue the practice statement as a fresh statement of practice in the court’s own name.
This is because it has as much effect in this court as it did before the appellate committee in the HoL.
It was part of the established jurisprudence relating to the conduct of appeals in the HoL which was
transferred to this court by S.40 of the CRA 2005.

Although this doctrine seems rigid in nature, besides the practice statement the judges have
subsequently departed from the precedent at times in the following ways–

➢ Distinguishing: The doctrine of binding precedent requires that a judge follows the decisions
of earlier cases unless a similar earlier precedent can be distinguished. Cases can be
distinguished on their material facts or on the point of law involved. This is a device
sometimes resorted to by judges in order to avoid the consequences of an inconvenient
decision which is, in strict practice, binding on them. It is a technique which allows a court to
escape a binding precedent. Example cases are (Holwell Securities Ltd. v Hughes), (Henthorn
v Fraser), (R v Smith) was distinguished from (R v Jordan), (Merritt v Merritt) was
distinguished from (Balfour v Balfour), (Bruner v Moore).

➢ Overruling {2 courts, 2 cases}: Overruling occurs when a later court decides that as stated in
an earlier and different case is wrong and no longer represents the law. It involves separate
cases. A case may be expressly overruled by parliament. Alternatively, if a case has not been
 expressly overruled but is inconsistent with a later act of parliament, it will be deemed to have
been impliedly overruled. Example cases are (Murphy v Brentwood District Council) where
the HoL overruled (Anns v Merton London Borough Council). From re spectrum plus 2005, it
is to be noted that Lord Nicholls suggested that this exceptional practice could potentially
apply to both judge-made law and to the interpretation of statute. This can also be seen in the
case of (Awayomi v Radford and another 2007).

As we have seen in the case of (Arthur v Simons), the HoL overruled its own decisions of
(Rondel v Worsley) on the point of a lawyer’s freedom from negligent liability in the interest
of the public. On the other hand, in the food corp of (India v Antchiza Shipping Corp) the
house did not deviate from its own previous decision in (Bremer v Vulcan) because the house
felt that any such department was not appropriate.

➢ Reversing {2 courts, 1 case}: Unlike overruling which involves separate cases, reversing
describes what a higher court does in relation to a decision given by a lower court in the same
case (Farley v Skinner 2002), (Knott v Bolton). Reversing is by appeal and by reversing the
decision, the higher court basically states that the decision made by the lower court in the
same case was wrong.

In (R v Shivpuri) the HoL was invited for the first time to overturn its decisions in the case of
(Anderton v Ryan). In (R v Howe) the HoL reversed its decisions for (Northern Ireland v
Lynch) and held that duress is never a defence for murder. The HoL in (British Railway
Board v Herrington) reversed the earlier case of (Addie v Dumbreck) and held that occupier’s
should take reasonable steps to deter people from trespassing where they are likely to be
injured.

The HoL explained its position and pointed out that why it must abide by the precedents,
guarantee the certainty and consistency of the law and ensure the orderly development of the
law; it must also deviate from its previous decisions in the best interest of justice and response
to changing social conditions. The HoL allowed itself to deviate from its earlier decisions
demonstrating its new flexibility towards the precedent principle and to ensure that public
interest is restored.

➢ Court of Appeal (Young v Bristol): At present the UK Supreme Court has replaced the HoL
as the highest court of the country under the CRA 2005. It is evident that the Supreme Court
will follow the same practice of precedent as the HoL and demonstrate the same degree of
flexibility. When it comes to the doctrine of binding precedent the Court of Appeal has a far
stretched stricter presence than the HoL which is now called the Supreme Court. As per the
general rule of the precedent the Court of Appeal is bound to follow its own previous
decisions following the concept of stare decisis. However, with time a generous exception
was brought in by the case of (Young v Bristol). There are also examples where the CoA did
not follow the binding decisions of HoL but followed the decisions given by Privy Council.
For example, (R v Faqir Muhammad), the CoA did not follow the binding decisions given by
the Privy Council in (Jersey v Holley). Looking at the overall attitude of the higher judiciary
it seems that courts try to adhere to stare decisis principle until it ensures justice but when
courts felt that it was not possible to dispense justice by following the stare decisis principle,
they have demonstrated their willingness to depart from previous decisions even by creating
 new principle of law. The finest example of creating law by a court is (Donoghue v
Stevenson; Hedley Byrne v Heller) and (R v R).

According to the declaratory theory by William Blackstone, the role of the judges is merely to
discover and declare the law. Therefore, the judges of the court have to keep two basic
principles in mind for the operation of precedent. The first is that the judges of the lower court
are bound by the decisions of the higher court. Secondly, the judges of the appellate courts are
bound by their own previous decisions. The CoA, however, are bound by their own previous
decision except if it falls within one of the categories stated in (Young v Bristol).

Lord Greene set out three situations where the Court of Appeal can deviate from its own
previous decisions in the following exceptional circumstances.

1. Firstly, when there are two previous conflicting decisions of the court of Appeal, the
court can choose which of these decisions to follow and disregard the other (Tiverton
Estates Ltd. Wearwell).
2. Secondly, when a previous decision of the CoA conflicts with a latter decision of the
SC, the CoA should not follow its earlier decision in defence to the superior status of
the UK Supreme Court (Family Housing Associations v Jones).
3. Finally, the CoA does not have to follow one of its previous decisions when that
decision has been made per incuriam meaning the decision had been taken in
ignorance of some relevant legal authority (Bonalni v Secretary of States for the
Home Department).

Lord Scarman explained that two things must be taken into consideration by the court before they
depart from their own previous decisions–

(a) Continued adherence to the precedent could involve the risk of justice and also obstruct the
development of law.
(b) A departure from the precedent is said as appropriate to ensure justice and in developing the
common law.

Hierarchy debates

The European Court of Justice is now firmly situated at the top of the court hierarchy when matters of
European law are involved and when a previous decision conflicts with a provision of EU law, the
Court of Appeal or even the Supreme Court must ignore its earlier decision and stand by the precedent
of European law. Lord Denning in (Gallie v Lee) stated that the doctrine is a self-imposed restraint
and we who have imposed it can also remove it. However, the statement of Lord Denning was
criticised by Lord Hailsham where he suggested that the lower court must uphold their loyalty
towards the higher courts.

Although the exceptions set out in (Young v Bristol Aeroplane) apply to both civil and criminal
divisions of the Court of Appeal, a more flexible approach is taken to the application of its own
previous precedents by the criminal division due to the fact that individual liberty is often at stake in
criminal cases. The criminal division stated clearly in (R v Spencer) that it need not adhere to past
precedents as rigidly as the civil division and would depart from its own decision when an
individual’s liberty is to be strengthen as a result of the incorporation of the European Court of
Human Rights into domestic law which ensures the right to liberty in Article 5.

There have been strong suggestions that the Court of Appeal should enjoy similar flexibility as the
UK Supreme Court. Lord Denning in particular led a campaign to assert the same power for the Court
of Appeal but the then House of Lords maintained in cases such as (Davis v Johnson) that the Court of
Appeal remained generally bound by its own previous decisions. A strong argument for extending the
same freedom to the Court of Appeal lies in the fact that in most cases the Court of Appeal is the final
appeal court with very few cases reaching the Supreme Court. Given that, a major reason to put
forward in the 1966 practice statement for allowing the House of Lords to depart from its own
precedent was that too rigid adherence to precedent could lead to injustice, it is arguably sensible to
apply the same logic to the Court of Appeal as well.

However, while this has been the traditional approach to precedent, the courts approach could be
termed dynamic because it reflects transparency and a scope of development for interest of justice.

Advantages of precedent

Binding precedent is said to produce consistency. As courts are required to follow previous decisions
from cases sharing similar material facts, they ought to bring consistent outcomes. This promotes a
sense of formal and substantive justice where similar cases result in similar outcomes. Binding
precedent is also said to create certainty in judicial decisions. As past decisions are followed, potential
parties can anticipate the likely outcome of their own case. This produces another advantage of time
saving for the would-be parties, lawyers and judges. Greater predictability of decision means that
there is likelihood of actions being pursued by parties which past precedent indicates will probably be
successful. Judicial decision making in individual cases is also theoretically quickened by the need to
simply follow the past precedent. While statute will often provide the general framework to govern a
particular subject, it is the development of case law that gives such provisions practical meaning.
Precedent also amounts to flexibility which means that higher courts can change the law faster in
response to social changes whereas the parliament must go through lengthy procedures to enact a new
legislation.

Disadvantages of precedent

Several criticisms have been made of the system of binding precedent. Some are reversed arguments
of its alleged benefits. Its certainty and consistency are disputed. Critics argue that the sheer
complexity and the volume of case law mean that certainty and consistency cannot be guaranteed.
Critics of binding precedent therefore assort that rather than being time saving, it is actually a time-
consuming device which requires judges to spend lengthy periods of time consulting previous
decisions without necessarily resulting in predictable decisions.

Ratio Decidendi and Obiter Dicta (p50-52)

Introduction
Over the years there has been a lot written on the subject of what exactly constitutes the ratio
decidendi. Professor Goodhart kicked off the debate in 1930 with his article named ‘determining the
ratio decidendi of a case’ and legal academics have been arguing ever since. Turns out, determining
the true ratio is not as simple as identifying the reason for deciding. Unfortunately, the precedent
judge does not explicitly announce the ratio so it is upto future judges and everyone else to figure it
out. The reason for this according to Cross and Harris is that if the mere act of declaring the ratio
made it binding, then judges would have infinite law-making power. Cross and Harris writes – “if a
judge has this amount of freedom to determine which of his observations is ratio decidendi and which
is obiter dictum, is there not a grave danger that he will exercise an undue influence on the future
development of law?”

Ratio Decidendi

After a judgement is written, there is a period of discovery that is needed to figure out what the ratio
truly is. This involves deciphering whether it has fallen outside of what constitutes as the ratio and
how narrow or wide the ratio is likely to be or ought to be. To constitute the ratio, it must be a
necessary step to the conclusion. There are many ways to conceptualise this rule. Christopher Enright
in his book Legal Technique describes it as, “to be the ratio as a rule of law formulated in a case must
determine the case”. In the book Precedent in English Law, Cross and Harris writes, “the ratio
decidendi of a case in any rule of law expressly or impliedly treated by the judge as a necessary step
in reaching his conclusion, having regard to the line of reasoning adopted by him or a necessary part
of his direction to the jury.” Or the High Court judge Anthony Mason describes it in his article as,
“the ratio is the principle or statement of law on which the previous decisions is based to the extent to
which it is essential to the decision.”

To constitute as the ratio, it must be directly related to the issue. In (Garcia v National Australian
Bank Ltd.), Kirby J writes, it is fundamental to the ascertainment of the binding rule of a judicial
decision that it should be derived from a matter in issue in the proceedings. The ratio must be derived
from disputes of law, not disputes of fact. A point of law that will become precedent should have the
opportunity to be argued by both parties in court or the law will go without the benefit of counter
arguments and fine-tuning. This rule was first proposed in the old case of (R v Warner). Many years
later Gleeson CJ, Gummow and Heydon J re-expressed this point in (CSR Ltd. v Eddy 2005) and
Mansfield J later affirmed this in (Taylor v Rudaks 2007).

Ultimately, it is for the future court to decide how narrow or wide the precedent ratio ought to be as is
elaborated in the case of (Street Investments 2004) that if later court reads down the rule of the case,
they may treat the proclaimed ratio as too broad, too narrow or inapplicable. Later courts may treat the
material facts of the case as standing for a narrower or different rule from that formulated by the court
that decided the case. Consequently, it may take a series of later cases before the rule of a particular
case becomes settled. Thus, for many years courts and commentators debated whether the landmark
case of (Donoghue v Stevenson) was confined to manufacturers and consumers and whether the duty
formulated in that case was dependent upon the defect being hidden with the lack of any reasonable
possibility of intermediate examination. In (Povey v Qantas Airways Ltd) 2005, McHugh J said that
later courts commonly treat the material facts of a case as standing for a narrower or broader ratio
decidendi than that expounded by the court that decided the case. (McBride v Monzie PTY Ltd) 2007
stated that if a judge gives two or more alternative reasons for reaching their decision, each reason is
part of the ratio. To constitute the ratio, the majority of the judges must agree where there are multiple
judges. By implication, dissenting judgements are not binding that means judgements by the minority
of the judges will not be binding. Precedent can only operate if the legal reasons for past decisions are
known therefore, at the end of a case, there will be a judgement which is a speech made by the judge
giving the decision and more importantly explaining the reasons for that decision. In a judgement a
judge is likely to give a summary of the facts of the case, review the arguments put to him by the
advocates and then explaining the principle of law he is using to come to the decision. These
principles are an important part of the judgement and are known as the ratio decidendi which means
the reason for deciding. This is what creates a precedent for judges to follow in future cases. And thus,
Sir Rupert Cross defined ratio as any rule expressly or impliedly treated by the judge as a necessary
step in reaching his conclusion. In the case of (London Street Tramways) the HoL focused on the
binding precedent of the case which is the ratio decidendi. They held that they would not deviate from
certain ratios and precedents until the 1966 Practice Statement as stated by Lord Gardiner. In the case
of (Grant v Australian Knitting Mills) the manufacturer had a duty of care towards its customer which
was the ratio followed from (Donoghue v Stevenson). In the case of (Scruttons v Midland Silicones),
Rein LJ pointed out that if the previous ratio is obscure, wide or out of line with the other authority,
the court can limit its principle. (see p50-53, subject guide)

Obiter Dicta

Obiter dicta is typically seen as statements that don’t constitute the ratio decidendi, that means. Obiter
is everything else but the ratio. However, not all sentences in judgements fall under either ratio
decidendi or obiter dicta. The book, Laying Down the Law writes that – frequently during the course
of a judgement a judge will restate and discuss propositions of law from previous cases. Such
recitations may provide a useful foundation for the judge’s reasoning but they will neither be ratio nor
obiter. Thus, obiter dicta are statements made during the course of a judgement that do not fall under
the other categories such as the ratio, the orders, the headnote, the restatements of law, etc. Generally,
obiter dicta is not binding.

John Chipman Grey in his book The Nature and Sources of the Law writes – “it must be observed that
at the common law not every opinion expressed by a judge forms a judicial precedent”. In the book,
Precedent in English Law, Cross & Harris writes – “obiter dicta of the highest degree of
persuasiveness may often for all practical purposes be indistinguishable from pronouncements which
must be treated as ratio decidendi”. In (Farah Constructions Properties Ltd. v Say-dee PTY Ltd) 2007,
the high court unanimously stated that lower courts are bound by the high court’s long-established
authority and seriously considered dicta of the majority of this court.

Obiter means other things said and judges in future cases do not have to follow it or are not mandated
by it. Sometimes a judge will speculate on what his decision would have been if the facts of the case
had been different. Some ways of spotting obiter dicta in a judgement are to look for statements in
which the judge says something hypothetical, statements where the judge is not in the majority, and
general comments by a judge about the legal topic under discussion. These do not form part of the
reason for the decision in the case so they cannot form part of the ratio. However, even though they
are not a binding precedent, they may be of persuasive authority. This means that a later court may
decide to follow them even if it does not have to. A clear example is seen in the law on duress as a
defence to a criminal charge where the House of Lords in (R v Howe) 1987, ruled that duress could
not be a defence to a charge of murder. In the same judgement the Lords also commented as obiter
statement that duress would not be available as a defence to someone charged with attempted murder.
When later in (R v Gotts) 1992, a defendant charged with attempted murder tried to argue that he
could use the defence of duress, the obiter statement from (Howe) was followed as persuasive
precedent by the Court of Appeal. The CoA affirmed in the case (R v Barton) 2020 that the test for
dishonesty to be used in criminal proceedings is that set out in obiter dicta by the Supreme Court in
(Ivey v Genting Casinos UK) 2017, expressly overruling the two stage tests set out in (R v Ghosh).
The test in (Ivey) ensures dishonesty is objectively assessed by reference to society standards rather
than the defendant’s own understanding of what is dishonest. Until (Ivey), (R v Ghosh) was the test
for criminal dishonesty for over 35 years. Coming from following the obiter, the test for dishonesty in
all criminal cases is now set in (Ivey) by the Court of Appeal.

Do judges make law (subject guide, 5.2)

In the English Legal System, the rule of separation of powers was introduced. The rule of separation
of power specifies each of the three main bodies of the state their own roles and functions. The first
institution, the legislature, which consists of the parliament and the two Houses of the parliament, the
House of Commons and the House of Lords. The legislature’s function is to create or make laws
which are known as Acts of Parliament. Parliament is the only body that has the supreme power of
making law. The second institution is the executive. The members of the Executive are the Prime
Minister, Ministers, Armed forces and Police. The executives are known as part of the government.
Their function is to simply execute the law or enforce the law made by the parliament. The third body
of a state is the judiciary, the judiciary consists of the judges and the courts. The function of the
judiciary is to apply and implement the law that is made by the parliament. So, from this we
understand that parliament is the law makers and not the judiciary. However, we know from the
binding precedent, there are two sources from where the law comes. First is the law made by
parliament which is known as statutory law, and the other is the common law. Common law is known
as judge-made laws because judges apply the law made by parliament in courts and could change
laws if necessary to do so and the judgments are recorded in the law reports which are later followed
as precedent and they are commonly applicable to all parts of the country.

Do judges make law

The independence of the judiciary was ensured by Act of Settlement 1700 which transferred the
power to sack judges from the Crown to Parliament. Consequently, judges should theoretically make
their decisions based purely on the logical deduction of precedent, uninfluenced by political or career
consideration. In the eighteenth century, William Blackstone introduced the declaratory theory of law,
stating that judges do not make law, but merely by the rules of precedent discover and declare the law.
They are not delegated to pronounce a new lawsuit, rather to maintain and expound the old one. An
example of this approach Is given by Lord Simonds in the case of (Midland Silicone Ltd v Scruttons
Ltd 1962). In practice, a judge’s decision is not as neutral as Blackstone’s theory since at times they
made decisions which are no way spelled out by precedents.

There are number of ways in which judges may avoid following precedents –

1. By distinguishing a previous case based on their material facts or on the point of law involved
as can be seen in the case of (Merritt v Merritt) which was distinguished from (Balfour v
Balfour).
2. By overruling which means by stating that the precedent has been superseded by more recent
decisions and is therefore outdated. In Re Spectrum Plus 2005, it is to be noted that Lord
Nicholls suggested that this exceptional practice could potentially apply to both judge-made
law and to the interpretation of statutes (Awoyomi v Radford and Another) 2007.
 3. By reversing, which describes what a higher court does in relation to a decision given by a
lower court in the same case. (Farley v Skinner); (Knott v Bolton).
4. By arguing that the precedent is outdated and is no longer in step with modern thinking.
5. By arguing that the precedent has no clear ratio decidendi.
6. By stating that the previous decision was per incuriam meaning that the court failed to
consider some relevant statute or precedent.

Judges sometimes have no choice but to make law if there is no statutory law and also no previous
case law that really covers the situation they are faced with when deciding. A good example of this is
the case of (Gillick v West Norfolk and Wisbech Area Health Authority 1986). The title of Lord
Reid’s essay The Judge as Lawmaker published in 1972, after he had retired from the house of lords
(now supreme court) indicated his view of point. He famously said, “we do not believe in fairy tales
anymore”. So, we must accept the fact that for better or worse judges do make law and tackle the
question of how they approach their task and how they should approach it. In the case of (National
Westminster bank v Spectrum Plus 2005) Lord Nicholls said that common law is judge made law. For
centuries judges have been charged with the responsibility of keeping this law aggressed with the
current social condition and expectation. Continuing but limited development of the common law in
this fashion is an integral part of the constitutional functions of the judiciary. To note, the common
law is a living instrument of law reacting to new events and new ideas and so capable of providing the
citizens of this country with a system of practical justice relevant to the times in which they live. To
add further, the parliament in terms of bringing abrupt amendments and new changes is a manifestly
slow process and thus we know “Justice delayed is justice denied” as per William E Gladstone.

However, in his essay memoir ‘The judge as lawmaker’, Lord Bingham identified some situations
where judges would or should be reluctant to make new law. The main argument in favour of some
degree of judicial law-making is that of speed. Courts can rapidly develop or change the law where
necessary. Parliamentary process is lengthy and with the heavy legislative agenda parliament may not
give priority in dealing with areas of law that require updating and correction. Within the constraints
of precedent, the judiciary is able rapidly to correct mistakes or to keep the law up to date. The
principal argument against the judiciary making new law is that of democratic deficit’. The judiciary
is appointed, not elected. Thus, in a parliamentary democracy under the rule of law, it is not for the
judiciary to legislate rather a task of the Parliament.

In his speech ‘In praise of politics’ the Reith lectures 2019 Lord Sampton argues that the human rights
act 1998 gives judiciary the power to make law in politically controversial areas and that is essentially
undemocratic. He argues that law made in Europe by unelected judges in changing the law in the UK
in a way that is democratically unaccountable Ronald Dworkin argues that judges have no real
discretion in making case law. He sees law as a seamless web of principles which supply a right
answer to every possible problem. On the other hand, critical legal theorists, such as David Kairys
argued that judges have considerable freedom within the doctrine of precedent. He states that judicial
decisions are actually based on a complex mixture of social, political, institutional, experimental and
personal factors and are simply legitimated or justified by reference to previous cases. In a similar
vein, Griffith argues in his book ‘the politics of the Judiciary’ that judges make their decisions based
on what they see as the public interest. In his book, ‘The Law’, Waldron agrees that judges do
exercise discretion and that they are influenced in those choices by political and ideological
considerations. Waldron points out that, to be a judge at all, means a commitment to the values
surrounding the legal system, recognition of the Parliament as supreme, the importance of precedent,
fairness, certainty, public interest. Some support for Waldron’s analysis can be found in Lord
Hoffmann’s judgement in Arthur J.S. Hall & Co. v Simons (2000) where the House of Lords
dramatically removed the established immunity of barristers from liability in negligence for court
work.

Although judges have traditionally seen themselves as declaring or finding rather than creating the
law, and frequently state that making law is the prerogative of parliament, there are several areas in
which they clearly do make law. Historically a great deal of our law is and always has been case law.
The application of law, whether case law or statute, to a particular case is not usually an automatic
matter. Terminology may be vague or ambiguous, new developments in social life have to be
accommodated and the procedure requires interpretation as well as application. Judicial precedents do
not always make a particular decision obvious and obligatory, there may be conflicting precedents,
their implications may be unclear and there are always ways of getting round a precedent that would
otherwise produce an undesirable decision. Where precedents do not spell out what should be done in
a case before them, judges nevertheless have to make a decision – Airedale NHS Trust v Bland
(1993).

Lord Lowry suggested that five factors were important to consider —

❖ Where the solution to a dilemma was doubtful, judges should be wary of imposing their own
answer.
❖ Judges should be cautious about addressing areas where parliament had rejected opportunities
of clearing up a known difficulty or had passed legislation without doing so.
❖ Areas of social policy over which there was dispute were least likely to be suitable for judicial
law making.
❖ Fundamental legal doctrines should not be lightly set aside.
❖ Judges should not change the law unless they can be sure that, doing so, will likely achieve
finality and certainty on the issue.

However, judges do not always seem to be following these guidelines in practice. An example is the
important criminal case of (R v Dica, 2004) where the CoA overruled an earlier case of (R v Clarence,
1888). Writing in the New Journal in 1999, Francis Bennion, a former parliamentary counsel,
criticised what he called the ‘growing appetite of some judges for changing the law themselves, rather
than waiting for parliament to do it’. He cited two case examples of such consequences: (Kleinwort
Benson Ltd v Lincoln City Council) and (DPP v Jones). In 1952, Lord Denning gave a lecture called
‘The Need for a New Equity’ arguing that judges had become too timid about adapting the law to the
changing conditions of society. The judges were leaving this role too much to Parliament, which was
too slow and cumbersome to do the job well.

In deciding whether or not a precedent applies to a set of facts which has not previously been
considered by the court or in choosing between competing precedents or constructing the meaning of
a statute, the judges can be said to be creating the law. Sometimes this discretion must be exercised
because new technologies throw up situations which have not occurred before such as the case of (Re
A). At times, the changes which give rise to the need for judicial law making are not technological,
but social. In 1991, for example, the courts held that a husband was no longer immune from
prosecution for raping his wife (R v R). It is evident from an article of Giles M ‘Law Making in the
Criminal Courts: The Case of Marital Rape 1992’ where he emphasizes on the point that here judges
went beyond their limits on law making for the interest of justice but while in another journal by Sir
Ivan Lawrence QC ‘Punishment Without Law: Home Ends Justify The Means In Marital Rape’ where
it stated that courts have overridden the parliament which is supreme by putting their foots into law
making.

Similar changes have arisen in relation to the interpretation of statutes. In (Fitzpatrick v Sterling
Housing Association, 2001) the HoL held that the term ‘family’ in the Rent Act 1977 governing the
rights of a member of a family of a protected tenant to inherit those rights on the tenant’s death should
extend to same sex partners and not only heterosexual couples. In (Ghaidan v Mendoza, 2004) the
court completed the change of law in this area when it considered the provision of the Act to allow
unmarried heterosexual couples to inherit statutory tenancies. In (White v White, 2000) which
concerned the division of assets on divorce, the House of Lords held that the court should start from
the assumptions that the husband and wife were entitled to equal shares on divorce.

Therefore, there is a clear scope of judges making law for filling in gaps, applying the law for new
circumstances, adapting to changing conditions and ensuring that judgements comply with human
rights. A notable problem can be raised due to the homogenous backgrounds of the judges in terms of
factors such as class, gender, age, ethnicity and ox-bridge education background of judges. Judges
cannot be representative in the sense of being chosen to promote the interest of a certain constituency,
since this would undermine the fundamental principle of judicial impartiality. But it can be argued
that they can be representative in the sense that they should reflect the make-up of society at large.
(add statistics about judges’ gender, ethnicity % right now). Lord Bingham’s 2005 British Academy
Maccabean Lecture provides an excellent analysis of the competing viewpoints. He concludes that
judicial law making is desirable but that the power should be exercised with restraint. Authority in
interpretation of the law naturally derives from learning combined with good judgement. Lord Devlin
simply puts it, “the first quality of a good judge is good judgement”.

Civil Justice System

The civil justice system is designed to sort out disputes between individuals or organisations. It is the
means provided by the state for citizens and businesses to peacefully resolve legal disputes. Major
changes have been made to the civil justice system in recent years. After the Civil Justice Review
1988 reforms were made by the Court and Legal Services Act 1990. Following continued criticism of
the civil justice system, Lord Woolf was appointed to carry out a review of the civil justice system.
Lord Woolf made far-reaching recommendations in his report called access to Justice which was
published in 1996. The aim of this report was to reduce costs, delay and complexity of the system and
increased access to justice.

The legal process for civil cases developed in a rather piecemeal fashion, responding to different
needs at different times. With no coordination of the increasingly complex court system, inefficiency,
incompetence and delays were common and the courts acquired a reputation for binding themselves
up in a cumbersome procedural rule. The Civil Justice Review was set up in 1985 by the Lord
Chancellor in response to public criticisms of the delay, cost and complexity of the civil court system.
Lord Woolf was appointed by the previous Conservation Government to carry out a review on Civil
Justice System and thus so Access to Justice final report was published in 1996 where he stated that a
civil justice system should be just in the results it delivers, fair in the way it treats litigants, offer
appropriate procedures at a reasonable cost deals with cases with reasonable speed, be understandable
to those who use it, be responsive to the needs of those who use it, be effective, adequately resourced
and organised.

Lord Woolf concluded that the system at the time failed to achieve all those goals. Promoting
efficiency in terms of speed can also conflict with the needs for fairness. Making the courts more
accessible could lead to a flood of cases which would make it impossible to provide speedy revolution
and keep costs down. It is impossible to resolve all these conflicts and a successful legal system must
simply aim for the best possible balance. In the final analysis, it is for the government to decide the
balance they wish to strike and how much they are prepared to spend on it. While conflicting interest
may mean it is impossible to achieve a civil justice system that satisfies everyone, there were serious
concerns that the civil justice system before April 1999 was giving satisfaction to only a small
minority of users for a range of reasons. Research carried out by Lord Woolf’s review found that
because of the complexity of the litigation processes, costs were exceeding, and delays were taking
place.

On 26th 1999, new civil procedures rules and accompanying practice direction came into force. The
new rule applies to any proceeding commenced after that date. They constituted a fundamental reform
of the civil justice system, introducing the main recommendations of Lord Woolf in his final report,
Access to justice. He describes his proposal as a new landscape for civil justice for 21st century. The
ultimate goal of this reform was to change fundamentally the litigation culture. The reform aimed to
eliminate unnecessary cost, delay, and complexity in civil justice system. The first rule of the new
civil procedure rules lays down an overriding objective which is to underpin the whole system. The
primary aim of the overwriting objective is that the court should deal with the case justly and at
proportionate cost. It also states that so far as far as practicable courts should ensure that the parties
are at equal footing, saving expenses, ensuring that a case is dealt with expeditiously and fairly,
enforcing compliance with rule, practice direction and orders. 

There has been some concern that Lord Woolf reforms increase rather reduce the cost. The Woolf
networks questionnaire 2002 suggested that the cost of engaging in civil litigation had not been
reduced by the civil justice reforms. The pre-action protocols combined with case management may
have front-loaded costs on too cases which would have settle anyway before reaching court. There has
been an increasing problem that after a legal dispute has been resolve the parties then enter into a
separate litigation as to the amount of legal costs that should be paid by the losing party this is known
as satellite litigation. 

As a result, Lord Jackson was asked to carry out an independent review of civil litigation costs. His
report, entitled review of civil litigation costs: Final report, was published in 2010. He took the view
that the right to access to justice required cost incurred during the civil litigation process to be
proportionate to the value of the case. It is discouraging if the cost of bringing a claim should
outweigh the actual value of the claim. Lord Jackson noted that there is serious problem of non-
compliance with pre-action protocols and the courts have become too tolerant of delays and non-
compliance with orders. The government accepted the key recommendations, and the relevant
provisions were contained in the legal aid, sentencing and punishment of offenders Act 2012
(LASPO).
ADR and its relationship to litigation in the courts

Although ADR has been used in England since around the 1950s, the use of ADR increased
considerably as a result of the Woolf Reports in 1995 and 1996. Lord Woolf, who was then the
Master of the Rolls and later Lord Chief Justice, had been tasked with carrying out a review of the
civil justice system. There were serious and longstanding concerns about the expense, delay and
complexity of the system. Lord Woolf strongly promoted ADR and mediation as a way of resolving
disputes outside the formal court processes and the Civil Procedure Rules require courts to encourage
parties to ADR where it is suitable. The Jackson Review of Civil Litigation Costs, in 2013, further
strengthened the view of ADR as being a central means of dispute resolution. Lord Justice Jackson
said that “the aim is that no case should come to trial without the parties having undertaken some
form of ADR in an attempt to settle the case”. Since the Civil Procedure Reforms, the courts have
developed case law on the role of ADR and mediation in particular in the civil justice system. This
has centred on the question of the extent to which the courts can require the parties to engage with
alternative dispute resolution. The penalty for not considering ADR is usually to deny the party at
fault their legal costs. Costs in legal proceedings are the money each side has to pay out, including the
fees they pay their solicitors and barristers and other professionals, as well as court fees. This usually
amounts to very large sums of money. After judgements has been given in a case, the judge can make
an order determining one party’s liability to pay another party’s cost and it is this cost that can be
affected by a party’s failure to engage in ADR.

In (Dunnett v Railtrack PLC, 2002) the court had recommended that the dispute should be put to
arbitration. Railtrack refused Dunnett’s offer of arbitration and insisted on a full court hearing. In the
hearing before the Court of Appeal, Railtrack was successful. However, the Court of Appeal held that
if a party had rejected ADR after it had been suggested by the court, this was sufficient to deny them
their legal costs.

In (Halsey v Milton Keynes General NHS Trust, 2004) the Court of Appeal held that there should be
no presumption in favour of mediation and that there need to be a real prospect of mediation
succeeding before someone should be denied their legal costs. The burden was on the unsuccessful
party to show that there was a reasonable prospect that mediation would have been successful
although this should not be an unduly onerous burden to discharge.

In (PGF II SA v OMFS Company, 2013) the court made it clear that silence in the face of an
invitation to participate in ADR is, as a general rule, is of itself of unreasonable conduct which can
lead to a costs sanction. It is necessary for the parties to engage with the ADR process.

In (Thakkar v Patel, 2017) the defendants did not refuse to mediate, but they delayed until eventually
the claimant’s lost confidence in the whole ADR process. Lord Justice Jackson said that where
mediation was obviously appropriate, the parties had to get on with it. If one party frustrates the
process by delaying and dragging for no good reason, that will merit a costs sanction.

In (Ghaith v Indesit Co. UK, 2012) Longmore LJ in a postscript to his judgement which criticised the
parties for failing to mediate prior to the hearing of the appeal, noted that there was a new mediation
pilot in the court which decided that any claim less than £100, 000 will be subject of compulsory
mediation. However, Lloyd LJ in (Swain Maison v Mills & Reeve, 2012) reaffirmed the (Halsey)
orthodox and said that in (Halsey), the Court of Appeal was concerned to make clear that parties are
not to be compelled to mediate.

In (Uren v Corporate Leisure UK Ltd, 2011) Smith LJ remitted an action for retrial in the High Court
and stated that before the action is listed for retrial, the parties should attempt mediation.

Three recent cases have shown that the courts are increasingly willing to penalise parties who are not
willing to engage with ADR. In the BXB case, a judge awarded a higher level of costs on the grounds
of the defendant’s silence in the face of an invitation to participate in ADR. While in (DSN v
Blackpool Football Club) the claimant was also awarded a higher level of costs because of the
defendant’s inadequate reasons for refusing to mediate. And finally in the Wales case the successful
defendant was penalised in cost because of a refusal to mediate. The judge said that given the long
history between the parties, “a mediation would have had a reasonable prospect of success”. Instead,
the defendant’s failure to engage with mediation meant that the defendant had ‘brought the litigation
on itself’.

Given this approach by the courts to penalise parties who unreasonably refuse to participate in ADR
to resolve disputes, does this lead to the conclusion that ADR processes should be mandatory? In
other words, should parties be compelled to use mediation or other alternative dispute resolution
methods, rather than using the court system? The courts themselves have not taken this step and have
spoken out against mandatory mediation. In the (Halsey) case mentioned before, the Court of Appeal
made a distinction between strongly encouraging the use of mediation and forcing parties to use it by
saying that it is one thing to encourage the parties to agree to mediation, even to encourage them in
the strongest terms. It is another to order them to do so. It seems to us that to oblige truly unwilling
parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their
right to access to court. It seems that compulsion of ADR would be regarded as an unacceptable
constraint on the right of access to the court and therefore, a violation of article 6 of the European
Convention on Human Rights, which is the right to a fair hearing. If the courts were to compel parties
to enter into mediation to which they objected, that would achieve nothing except to add to the costs
to be borne by the parties, possibly postpone the time when the court determines the dispute and
damage the perceived effectiveness of the ADR process.

The reluctance to make mediation mandatory was echoed by the report of the civil justice council on
ADR and civil justice. In its final report, in November 2008, the council said that it would be very
reluctant to recommend mandatory mediation. However, there are circumstances in which there is
compulsory consideration of mediation. In family law cases, under the provision of the Children and
Families Act 2014, there is a requirement for separating parties to attend a Mandatory Information
Assessment Meeting or MIAM, before they are allowed to make certain applications to the family
court. For example, disputes over finances or children’s arrangements. This involves compulsory
consideration of whether mediation should take place; it does not itself constitute compulsory
mediation.

The court’s power to make an order for a stay of its own motion is embedded in CPR 26.4 which
provides that if a court considers a stay for the parties to attempt ADR is appropriate, it will “direct
that the proceedings, either in whole or in part, be stayed for one month, or for such other period as it
considers appropriate”.
In (Lomax v Lomax, 2019), the Court of Appeal considered Halsey in the context of an appeal
concerning the courts’ power to order Early Neutral Evaluation where one party did not consent. In
(McParland v Whitehead, 2020), the then chancellor, Sir Geoffrey Vos gave a short judgement
following a disclosure guidance theory under the new Disclosure Pilot regime. He raised the
possibility that, following Lomax, a court may make an order for compulsory mediation. In a speech,
Mediation: An Approximation to Justice, Mr. Justice Lightman, to the solicitors’ firm SJ Berwin in
June 2007 described Lord Dyson’s comments in article 6 in Halsey as ‘wrong and unreasonable’.

Lightman J’s criticisms were echoed in a speech by Lord Phillips (then Lord Chief Justice) namely,
Alternative Dispute Resolution: An English Viewpoint, speech by Lord Phillips of Worth Matravers,
in which he made at the International Centre for Dispute Resolution in New Delhi in March 2008.
Lord Phillips’ view was that compulsory ADR might infringe article 6, depending on the sanctions for
non-compliance: an order preventing a party continuing with its case if it did not attempt ADR might
cross the line.

In a speech to the Civil Mediation Council National Conference a few months after Lord Phillips’
speech, Sir Anthony Clarke MR also opined on Halsey and article 6. He turned first to Lightman J’s
point that compulsory ADR was a feature of other legal regimes in Europe and elsewhere, which he
felt was ‘clearly right’.

Ultimately, some years later in a speech in 2010, namely, A Word on Halsey v Milton Keynes, speech
by Lord Dyson given at the CIArb’s Third Mediation Symposium in October 2010, and published in
the journal Arbitration (2011), Lord Dyson concluded that his comments on article 6 in Halsey had
been wrong, although he defended his overall decision. He stated that, “what I said in Halsey was that
to oblige truly unwilling parties to refer their disputes to mediation would be to impose an
unacceptable obstruction to their right of access to the court in breach of article 6. I think those words
need some modification not least because the European Court of Justice entered into this territory in
March this year in the case of (Rosalba Alassini)”.

Lord Neuberger, in a 2015 speech to the Civil Mediation Conference in 2015 expressed that
compulsory mediation could interfere with a fundamental constitutional right of access to the courts if
it was used as a substitute for litigation. He explained that the right of access to courts is fundamental
and, like all rights it has to be genuinely available to all. And so, mediation must not be invoked and
promoted as if it was always an improved substitute for litigation.

Recent academic opinion appears to favor the view that provided parties retain the right to proceed to
court at all stages participation in ADR can be made compulsory without any breach of article 6. A
slightly different view is taken by Shipman in his article in 2011 called Compulsory Mediation: The
Elephant in the Room, which concludes a lengthy analysis by suggesting that provided sanctions for
non-compliance are proportionate and considered there should be no breach of article 6.

Advantages and disadvantages of ADR

A detailed evaluation of the advantages and disadvantages of ADR depends on which ADR method
we are talking about. In the context of Civil Justice Reforms, the court processes were considered to
be very slow and expensive and in comparison, ADR methods are thought to be quicker and less
expensive than court proceedings. They can also be less formal and less complex, and so easier for the
parties to engage with. ADR methods like mediation are less adversarial than going to court and
therefore, more suitable for parties who want to maintain an ongoing relationship. Whereas, court
proceedings are with a few exceptions held in public, ADR is confidential and held in private. The
way a dispute is resolved through ADR can be tailored to what the parties want rather than the set way
in court proceedings is run.

On the other hand, ADR can magnify power imbalances between the parties. The weaker party in the
mediation may feel pressurized to settle whereas their legal rights may be better protected by a court.
A further criticism of ADR is that it may in fact not turn out to be cheaper or quicker. If ADR is
unsuccessful and does not lead to resolution of the dispute, the parties may still end up commencing
legal proceedings before the courts. As a result, the whole process takes longer and possibly costs
more than if the dispute had just been initially taken to court.

Hazen Genn has expressed concern that the government is promoting mediation at the expense of
access to the court system. Access to alternative dispute resolution is not necessarily the same as
access to justice. Genn argues that an increased use of mediation has led to the privatization of justice
whereby an increase in the use of ADR leads to fewer cases proceeding to public trial in the courts.
This raises rule of law issues due to a loss of public adjudication in open court and the potential loss
of precedent in common law systems. Fewer cases in the court system and the resulting fewer number
of precedents risk the underdevelopment of the common law in certain areas where ADR is most
used.

CJS and LASPO ANGLE: Legal Aid, Sentencing and Punishment of Offenders Act 2012
(LASPO)

Civil justice system is an instrument through which one individual can dissolve their clashes with
other individual and enforce rights. In this system one party sues another for compensation or
damages for harm to their interest. Legal aid means that there is funding opportunity for those who are
in financial crisis and thus could not pay for legal advice or proceedings. In order for citizens and
business to protect their legal rights they must be able to access the justice system. Effective access to
justice requires awareness of rights, entitlements, obligations, responsibilities, awareness of the
procedure and to ability to participate effectively in the process. 

However, there can be many barriers that hamper parties attempting to resolve their legal disputes and
it includes not being aware of rights, not knowing where to go for advice and help, not being able to
pay for expert advice and representation, and not being in position to understand and navigate the
complexities of legal system. 

Substantive legal right does not add value to the society where the citizens are not aware of their
rights or the procedure of accessing the justice system. The provision of legal services at public
expense generally referred as legal aid is an acknowledgement of difficulties that the public often face
in using the legal system without advice and advocacy. The provision of legal aid is an expression of
government commitment to the rule of law which promises equality before the law and equal access
to justice. 

England and Wales established their legal aid system through Legal Aid and Advice Act 1949 which
was designed to provide legal advice of those slender means and resource so that no one will be
financially unable to prosecute a just and reasonable claim or defend a legal right. Since then, the
legal aid system in England and Wales developed into one of the comprehensive skills in the world,
covering advice and representation for civil and criminal cases in all courts up to the supreme court of
England and Wales. By the mid-1990s, however all the cost of the English legal aid system has
reached around £2 billion from both civil and criminal case. Since that time successive governments
have modified and reduced the scope of the legal aid system particularly in relation to civil and family
cases. The most recent and dramatic change to legal aid was made by the legal aid, Sentencing and
Punishment of Offenders Act 2012 (LASPO), which came into effect in April 2013.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) had a dramatic impact
on the provision of civil legal aid in England and Wales and has meant that legal aid is no longer
available for a wide range of civil legal issues. LASPO is one of several recent changes to the legal
system in England and Wales that have affected individuals’ demand for and ability to access justice.
LASPO was introduced in response to increasing pressure on the legal aid budget and in the context
of a wider policy to reduce the national deficit. According to the Ministry of Justice, LASPO aimed to
-

1) discourage unnecessary and adversarial litigation at public expense

2) target legal aid to those who need it most
3) make significant savings to the cost of the scheme
4) deliver better overall value for money for the taxpayer

Most of the projected cost savings were made by removing a number of areas of law from the scope
of legal aid, including most private family, employment, welfare benefits, housing, debt, clinical
negligence and non-asylum immigration law matters. Savings were also made by changing the
Financial Means test for areas of law that remained in the scope of legal aid, including ending
automatic eligibility for those in receipt for means test benefit and reducing the limit on the maximum
income and capital an individual can have to qualify for legal aid.

The civil legal aid is generally available in two forms: legal help and legal representation. Legal help
refers to initial advice and assistance to solve a problem to solve a problem including specialist
casework to help with the assessment of the merits of a claim, to correspond and negotiate with the
other party, and to progress a claim towards a court or tribunal. On the other hand, legal
representation refers to formal representation by a solicitor or barrister in court. Individuals with
problems in areas of law excluded from legal aid under LASPO can no longer access legal aid to fund
either legal help or legal representation.

Prior to the introduction of LASPO much of the legal help that was available was provided through
advice organisations that held legal aid contracts with government. The reduction to the scope of legal
aid under LASPO led to a corresponding reduction in funding for advice organisations, and limited
their ability to provide specialist legal help. Citizens Advice for example lost around £19 millions of
funding as a result of LASPO. Around half of Citizens Advice Bureau previously held legal aid
contracts which funded qualified staff to provide specialist advice to people with legal problems
relating to debt, welfare benefits, housing, family, employment and immigration.

Private family law cases such as divorce and child contract, were generally removed from the scope of
legal aid by LASPO. This was intended to encourage people to resolve their private family law
problems out of court which was the main way the government planned to discourage litigation. The
number of private family law proceedings in the family courts has not fallen significantly since the
introduction of LASPO. The Ministry of Justice predicted a corresponding increase in the uptake of
mediation following the implementation of LASPO, and an increase in Mediation Information and
Assessment Meeting (MIAMs), which establish whether mediation is an appropriate form of dispute
resolution. All employment law matters, with the exception of employment-related discrimination,
were taken out of scope for legal aid by LASPO.