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Free 2.1 Law Essay

The pre-action protocol procedure "has substantially reduced the number of actions launched, and led to a reduction in civil business." (Lightman, "The Civil Justice System and the Legal Profession - the Challenges Ahead", 2003) Discuss.

The aim of the pre-application protocol is to ensure that:

(a) Pre-application disclosure and negotiation takes place in appropriate cases.
(b) Where there is a pre-application disclosure and negotiation, it is dealt with
(i) Cost effectively;
(ii) In line with the overriding objectives of the Family Proceedings (Amendments) Rules 1999;
(c) The parties are in a position to settle the case fairly and early without litigation.

This discussion will explore the pre-action procedure in reference to family law but is has been applied in other areas. It will illustrate how such clauses are important to protecting individuals in delicate circumstances and are more important than the business of civil practices. For example other areas that such protocols are available are housing disrepair and other areas of tenancy law, medical law, injury law and abuse law. It is used in areas where a quick resolution is needed either due to a delicate situation or the need for financial compensation for injury. This discussion will consider divorce proceedings and the procedure where negotiation prior to action is compulsory, where out of settlement is preferred. This will shorten the case but is necessary for not only the two parties but children that are caught up into it, i.e. justice is taking over whereby monetary and business concerns of the solicitor are secondary under the law to swift resolution for the parties. If such as protocol was not mandatory then an unprincipled lawyer could exploit the bad feelings between the parties and make divorce proceedings last a much longer length of time therefore pumping up their end fee. Rather as this case study will illustrate the divorce laws are set up for quick resolution so all parties can proceed in their lives.

The divorce law in England is governed by a special procedure where the divorce petition needs to be filed at the court. If there is no case of a defence or cross petition then all that needs to be filed after is the petitioner's affidavit and evidence of grounds of divorce and the judge will then decide if the documents are enough to grant the divorce. Therefore there is no need for the parties to go to court. If a response or cross petition is filed then the petitioner still does not have to have any further in respect to sending documents but it would benefit the petitioner's case for her to respond to the respondent and to file a response (affidavit) to any cross petition in order to strengthen and defend her case. The fact that the documents are so bare and there is no need to attend has led to many criticisms of divorce law, because it makes it too quick and easy and no regard is given to the consequences and effects of their marriage and subsequent divorce; as well as the sanctity of marriage is not protected. In truth divorces should be quick and easy so that solicitor's fees are not unaffordable and courts are free for more important cases, i.e. the safety of children. One of the biggest obstacles to an early divorce and settlement is ancillary relief; therefore the protocol was introduced so that the quick procedure of divorce was upheld.
All parties must always bear in mind the overriding objective set out at FPR Rule 2.51B and try to ensure that all claims should be resolved and a just outcome achieved as speedily as possible without costs being unreasonably incurred. The needs of any children should be addressed and safeguarded. The procedures which it is appropriate to follow should be conducted with minimum distress to the parties and in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances.

Ancillary relief is the distribution of financial and property assets of a married couple after a divorce or nullification. The MCA can order different types of payments, such as periodical payments, secured periodical payments and lump sums. There are also property orders which are the transfer of property, settlement of property, variation of settlement and extinguishment or reduction of settlement. The court can also order the sale of property if there are secured periodical payments, lump sum order or property adjustment order. The goal of the court is to create a situation which creates a clean break, a certain split and just in cases where there are no children. The court holds a wide discretion in splitting assets and not concerned with who brought what in to the relationship, as per Hanlon v The Law Society . In the case of children it is not appropriate usually to use the clean break formula, but it is usually appropriate in big money cases where there are no children . The court has to consider if it should be immediate or after a period adjustment. If it is not appropriate other orders should be considered. The most important element the court has to consider is financial resources i.e. was the petitioner the breadwinner therefore halving the assets would be unfair as the petitioner as no means to care for herself financially; therefore alimony payments are appropriate and can the respondent afford them . If the parties do not come to a reasonable arrangement then the court will start applying these rules in order to create a fair and just separation of assets and means of maintenance for both parties. As there are no children in this case this simplifies the matter, i.e. neither party retains the house if owned to care for the children rather if a home is owned it could be split. Yet if either party does not have the means to support themselves the house may be ordered as their property or an order to allow this party to reside in this jointly owned property. If both parties are not on the title and both contributed to the purchase, mortgage or major upkeep of the property than a beneficial interest in the property will be held. Also even if the property is held to be the sole ownership of the other then the court will hold this asset as means to either sufficiently support themselves or order alimony payments to the other party who has no means to support themselves and no home, i.e. a secured periodical payment. Therefore the considerations of the court are in respect to the standard of living, the ability to financially provide for themselves and a place to live. These considerations are also dependent on the age of the individual's and the length of their marriage, i.e. if it is very short then less dependence will be expected; whereas if it is a long term marriage this will be considered. Also the mental and state of health of the parties will be considered , which may be important for the petitioner if she was the subject of abuse, i.e. ancillary relief needs to be decided as quickly as possible in the interests of safety and any children involved.

Therefore this is a case where parliament has ensured that justice and unscrupulous solicitors do not prevail. From a business point of view this will seem as a restriction on the solicitor's enterprise; however the role of a solicitor is not primarily a businessman but a proponent to bring about justice. In divorce cases justice is not so easily distinguishable therefore a negation process needs to be taken, rather than the adversarial court approach because it is a delicate matter and it should not be drawn out. There was individuals and their rights to consider; however in certain cases this procedure may not result in justice, especially in cases where there has been a control element, i.e. physical mental abuse. Therefore there may need to be an avenue of litigation; however it should be kept short and not drawn out; however as Berlin argues should the state interfere into the rights of the solicitor?
Berlin states that 'the fundamental sense of freedom is freedom from chains, from imprisonment, from enslavement by others. The rest is an extension of this sense, or else metaphor.' This is negative freedom. What he terms positive freedom concerns the wish a person has 'to be his own master'. This dichotomy illustrates that there is no single arrangement 'whereby all the diverse ends of man can be harmoniously realised.' There may be social goals that are no less pressing than liberty, but they are not the same as the fundamental sense of freedom, the absence of external coercion.

Berlin's argument for justice is that all individuals should be free from the chains of the government, i.e. the individual's rights should not be interfered with by the state, unless another's rights are being affected. This is a liberal view of justice and the needs of the state should not cause any restrictions on the individual. This becomes especially important when dealing with individual rights; however it goes against distributive and corrective justice where the state ensures substantive equality of arms for weaker parties by setting up programs to equal the playing field, such as this protocol because in the solicitor client relationship the solicitor is in the position of power.
On the other hand, the basis of Hart's analysis was to separate the morality with the rule of law to ensure that an analytical approach to the rights of the individual and the needs of the community are expressed sufficiently; by adding in the analytical rights of individuals within this structure. Therefore ensuring not only the protection of the community, but justifying the validity of the law that protects individual's rights over the wants of the state. Hart argues in Definition and Theory in Jurisprudence that this is because the state is subject to the legal rules and conventions to protect individual's as well as reduce tensions and ensure the legitimacy of the government in much the same way that the individual needs to follow the rules and conventions of the state. Therefore the government in the protocol is considering justice and has designed this legal procedure to ensure that the law of the land is followed and not used for unjust purposes, i.e. the solicitor may have rights of enterprise but they cannot be used if the state concludes these rights against its sense of justice.

The fact that a man has a right to look at his neighbour over the garden fence does not entail that the neighbour has a correlative obligation to let himself be looked at or not to interfere with the exercise of this specific liberty right.

Hart's concept of liberty lies in the fact that an individual can stop another person exercising a liberty, as long as it is in respect to that individual's liberty and it does not breach the extent that the individual has in exercising these rights. This discussion returns back to the discussion where there are powers of right holders and obligations of duty bearers. Yet it returns to the same premise that the ultimate power lies within the state and an individual cannot do as one wishes if it breaks the limitations placed upon us by state law. Therefore although there are limits on civil business with the use of the protocol, it is in the interests of justice to ensure that litigation in delicate situations such as divorces is not drawn out for the sake of money. There are more important considerations, such as living expenses, shelter, the rights and position of any children and the emotional, mental and possibly physical well being of the parties. Therefore parliament has decided that the enterprise rights of solicitors in these circumstances are less important and placed restrictions on them to ensure that there is quick resolution between the two parties:

The aim of all pre-application proceedings steps must be to assist the parties to resolve their differences speedily and fairly or at least narrow the issues and, should that not be possible, to assist the Court to do so.

Bibliography:

Berlin (1958) Two Concepts of Liberty: An Inaugural Delivered before the University of Oxford 31st October 1958, Clarendon Press

Baron et al, Jurisprudence & Legal Theory: Commentary and Materials (London, Butterworths Lexis-Nexis, 2002)

Creton, Masson & Bailey-Harris, 2003, Principles of Family Law, Sweet & Maxwell

Hart H L A. The Concept of Law (Raz and Tulloch revised edition), (Oxford:
Oxford University Press, 1994)

Hart H L A. Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983)

Hart H L A. Essays on Bentham (Oxford: Clarendon Press, 1982)

Hart (1954) Definition and Theory in Jurisprudence, 70 Law Quarterly Review (37-60)

Hart (1958) Positivism and the Separation of Law and Morals, 71 Harvard Law Review (593-629)

Herring, 2004, Family Law Longman

Infolaw UK can be found at: http://www.infolaw.co.uk/procedure/family/fpr-pap.htm

Kamm, 2003, The Nature of Liberty can be found at: http://oliverkamm.typepad.com/blog/2003/09/the_nature_of_l.html

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