Showing posts with label Civil Law. Show all posts
Showing posts with label Civil Law. Show all posts

12 Jul 2018

Is it worth it, part 2

Remember when I wrote about a student who pretended to know the law at an expert level when she didn’t? This person sadly has not learnt any lessons. The crux of the matter is as follows:

The student made large claims that she was ‘a solicitor with 25 years practicing experience’. This has been continually affirmed in writing, that is, the student continues to make this claim even though there is no evidence of this… in fact, the evidence points to the opposite, a rather low understanding of the law, and basic English Language.

A polite request wondering why the student wanted an(other) LLB when that student was already a practicing lawyer returned the response that ‘the student wanted to become a judge’. Basic Google searches reveal that a ‘second’ LLB is not a requirement to be a judge.

You may be wondering why I brought this up again… well, the matter is now in the public domain as the student filed a claim for defamation in the County Court where it was dismissed because (a) it was the wrong court, and (b) the case had ‘no prospect of success’.

Not to be deterred, the valiant warrior for the underdog again took up cudgels and, armed with a mighty misunderstanding of law on the whole, and defamation law (and the Civil Procedure Rules (CPR)) in particular, strode boldly into the High Court to seek and do justice. The fight was short and not especially vicious, and didn’t even raise a sweat on the defendants’ brows as the referee (judge) took one look at the wandering of the wayward warrior’s mind and ruled “particulars of claim and accompanying documents are an abuse of the court's process or is otherwise likely to obstruct the just disposal of proceedings”.

The gist of the circumstances at the High Court is this – the claim was initially stayed to give the claimant (our student and intrepid warrior) opportunity to rewrite it because the original claim was some 10 pages of incoherent rambling and which was not in compliance with the CPR (16 and 53). The revised claim was 79 pages (nearly 270 paragraphs) of even more incoherence which led the judge to ask if the claimant even knew the meaning of the word ‘concise’. The claim was then dismissed in its entirety because ‘it had no real chance of success’ as the claimant appeared to have no understanding of law or of how civil litigation works.

Nevertheless, our intrepid warrior refuses to stay down. A request to appeal has been made, itself having no ‘real prospect of success’ but further reiterating how this person lives in a world created entirely within her own mind.

Sadly, among the evidence submitted to the court was a medical letter which affirms that this student has mental health problems. What is even sadder is that even such a person is allowed to make mistakes in making decisions, because under the Mental Capacity Act 2005, a person is deemed to have capacity unless “it is established that he lacks capacity” and “a person is not to be treated as unable to make a decision merely because he makes an unwise decision”.

Her mistakes in this case has caused her over £8,000 so far in awards against her for defendants’ legal expenses.

As I said before, pretending to know the law is not advised, especially among people who actually know the law.

4 Aug 2016

Differences between common law and civil law

There are several differences between common law and civil law. The main difference however, lies in the sources of the law. Judicial cases (the interpretation and analysis of statutes including) are regarded as the main source of law in a common law system. This gives the judges an active role in developing the law. Additionally, in order to maintain consistency, a system of precedent is used whereby issues decided by higher courts would bind lower courts on those same issues. This will be explained in more detail later on.

In contrast, in a civil law system past cases are considered as loose guides and judges have a more limited role. Codes and statutes are designed to cover all situations and judges in civil law systems are seen more as investigators rather than the arbitrators of the common law system.

Features which distinguish the two systems

Main feature of the legal system Common law system Civil law system
Development and continuity of legal system Evolutionary – this allows judges to make changes on an incremental basis. This allows for a gradual development of the law. Revolutionary – sudden changes which transform the state of the legal rule. This will occur through new codes/legislation.
Major source of law Custom and practice Codes (codification) and statutes
Reliance on precedent Yes No
Judicial role in law making Active and creative Passive and focus on the letter of the law (code)
A judge may review inferior decisions or question the way legislation has been used Yes (judges can hear cases to see if the law has been properly applied) No
Where decisions are made During the hearing of the trial Investigation and examination by judge or examining magistrate
Format of the trial Adversarial Inquisitorial
Function of lawyers Debate and oppose Advise and inform
Judge’s role during trial Referee or umpire Direct/examiner
 
© The Open University
 
You can read more about the differences here from the Open University, as well as listen to a podcast from the BBC's "Unreliable Evidence" program, in which Clive Anderson (a lawyer) interviews several legal experts.
 
I strongly suggest that you spend the time to read the links as sometimes a TMA (Tutor Marked Assignment) may come on differences between the two legal systems. And always keep in mind that all of Europe uses a civil law system.