Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of Parallelewelten.
A justice system should be founded upon the principle that the system is accessible to all persons. The existence of an efficient system is undoubtedly central to development. Access to justice concerns independence, impartiality and fairness of judges, legal literacy and aid, pro-poor laws and civil participation in legal and judicial reform. Access to justice is a fundamental right in all democratic societies. This brings me to the area I have chosen: The Jury System.
The right to Trial by Jury can be traced back to Magna Carta (The Great Charter of Liberties, 1215) and the independence of the jury from the judge was established in Bushells Case (1670). The jury performs specific roles. In criminal cases, the jury decides if the defendant is guilty or not. In civil cases, the jury decide if the claimant has proved their case and the amount of damages. However, it is a right in only 4 types of civil case: defamation over £10,000, malicious prosecution, false imprisonment and fraud. It is discretionary in other civil cases.
Qualifications for Jury Service. – Before the Criminal Justice Act, there was a list of persons who could avoid jury service, or for whom it was thought inappropriate. This list included judges and police officers. The qualification for jury service, Juries Act 1974 as amended by Schedule 33 Criminal Justice Act 2003 are as follows: A person must be between 18 and 70, registered on the electoral role, lived in the UK for at least 5yrs since the age of 13. (S 1 of Juries Act 1974). Disqualified persons are persons who are on bail in criminal proceedings. Disqualified for life is a person who was sentenced to life imprisonment, or to a term of imprisonment of 5yrs or more.
People, who are ineligible for jury service, are people suffering from mental disorders, the judiciary and others concerned with the administration of justice, the clergy and custody officers. Those who are eligible but excused as of right, are those aged 65 – 70, those who did jury service in the last 2yrs, members of Parliament, medical practitioners, armed forces and practising members of a religious society. A number of individuals who are randomly selected from an electoral register are summoned to court. A list of potential jurors is drawn up for each case and from that list the actual jurors are randomly selected in open court via a ballot box – the names are shuffled and then selected. The selection process is influenced by: ‘vetting’ which is the system whereby an investigation is done on a juror’s background to ensure that the juror is not unsuitable, and ‘Challenging’ when each juror to be sworn may be challenged without reason by the prosecution or the defence on the grounds the juror is not qualified, is biased, or may be reasonably suspected of bias.
With the selection of juries carefully analysed, there are advantages and disadvantages of having juries. The few advantages that are argued against the disadvantages are as follows: Juries may include ethnic minorities as a percentage of the whole population. The disadvantage however, is those ethnic minorities don’t often register to vote and they don’t have the language skills to be effective jurors. Many judges believe juror’s usually return the right verdict and very few appeals from jury verdicts. However, the disadvantage is that it is easily influenced by impressive barristers, or the judge. Juries are not required to give reasons for verdicts.
Defendants can elect jury by trial. However, many serious cases don’t provide for jury trial e.g. drunk driving. There is no choice but jury trial in indictable offences but none in summary trial. Perverse jury verdicts can provide a “criminal equity” whereas when juries return the wrong verdict, a series of miscarriages of justice undermines confidence. Jurors may be tempted to reach a quick verdict in order get it over with and go home. Another advantage is that prosecution and defence “challenges” correct the problems caused by random selection. However, the jury is against the principle of random selection. Juries are protected from pressure and outside influence when deciding a verdict. However, there is no way of knowing whether a jury understood the case and came to a decision for the right reasons e.g. R v Young.
The final advantage is public confidence. The right to be tried by one’s peers is a bastion of liberty against the state. Lord Devlin: “the lamp that shows that freedom lives”. However, the existence of the juries can distract them from the real problems in the CJ System, where people believe their existence means the CJ system is functioning well.
There are 3 alternatives to juries. These are used when juries are not needed in certain cases. They are: Trial by a single judge- this is successful in Diplock Courts in Northern Ireland (civil & some criminal trials). It is the norm in civil cases and in all matters in the Magistrates Court. However, after a period of time he may become more prosecution minded and have little protection against partial decision making. Tribunal of judge and layman- a mixed tribunal is a possible alternative. The trial would be speedier because the judge would be involved in all discussions. (Scandinavian Countries). A bench of judges- this would avoid some of the problems of a single judge. However, it will be very expensive, judges are politically appointed, and it is not right that lawyers should be the only arbiter in criminal proceedings e.g. some Continental countries and Divisional Courts, Court of Appeal and House of Lords.
Many people including judges say that juries can’t give others justice. But since it has been in existence for hundreds of years, my opinion is that it is an efficient system that satisfies the access to justice, it can be accessed and it provides a fair and just hearing.
PART 1 (B)
The formation of a contract is often preceded by a series of negotiations between parties. Some of the statements made may later turn out to be false. The nature of the statement will determine whether a remedy is available and if it is, the type of remedy awarded.
TLC Ltd decided to introduce new computer technology to modernize the administration of its business. They ed Answer Ltd and they sent a representative, Valentino, to look at TLC’s operations and advise them on a suitable system. After detailed inspection, Valentino recommended “Bizarre Pentium IV” and assured TLC with the statements, that the system was “the number one system for reliability” and that it was a “proving success and about to be installed in a number of similar businesses to yours (TLC’s.)”. In order to analyse whether a statement may be a misrepresentation, it is necessary to decide whether it could have been a representation. A representation is not a binding contractual term. It is a statement made in the negotiations leading up to the contract. If untrue, it will be misrepresentation, and can result in the contract being cancelled, or a claim for compensation.
The statement made by Valentino, is a representation of fact which is untrue, made by one party to the other before the contract is made, which is an inducement to the party misled to enter into the contract. This will amount to an actionable misrepresentation. There are three types of misrepresentation: Fraudulent, Negligent and Innocent. In each case the contract is voidable.
Fraudulent misrepresentation is defined by Lord Hersell in the case of Derry v Peek (1889), as a statement made with knowledge of its falsity, without belief in its truth and recklessly not caring whether it is true or false. In this case, the House of Lords emphasised that the key to fraud is dishonesty. The House of Lords has confirmed in a recent case that a defendant who makes a fraudulent misrepresentation cannot raise a defence of contributory negligence (Standard Chartered Bank v Pakistan National Shipping Corporation (2003)). Negligent misrepresentation is where the person making the false statement has no reasonable grounds for believing the statement to be true. Two types of negligent misrepresentation are: negligent statement at common law (Hedley Byrne v Heller and Partners (1963)) and misrepresentation under the Misrepresentation Act 1967. Innocent misrepresentation is a statement made in belief that it is true with reasonable cause for that belief. This also arises where the representor has discharged the burden of proof imposed by S. 2 (1) Misrepresentation Act 1967.As with the case of TLC Ltd and answer Ltd, TLC can sue Answer Ltd for Negligent Misrepresentation.
Whether Valentino’s lie is negligent misrepresentation, and why is it a negligent misrepresentation. Valentino lied to TLC Ltd about the Bizarre Pentium IV system. He lied by making a false statement because he had no reasonable grounds for believing the statement to be true. Valentino’s statement is a negligent misstatement. TLC Ltd also lost profits since the installation of the system. They estimated they have lost £20,000 and a further £30,000 anticipated profits. They also found that features described as being ‘part of the package’ did not work. They also discovered that no other company had installed the system. TLC can bring an action of tort against Answer Ltd and sue for damages from the loss of profits.
The Law of Tort means to do wrong. Answer Ltd did a wrong by lying to TLC Ltd about their computer system. In the case of Donoghue v Stevenson (1932), it was held that, if the party could have proved their allegations, they would be entitled to succeed.
TLC can claim for damages under the principle in Hedley Byrne & Company v Heller & Partners Ltd (1963), where a negligent misstatement induced TLC into a contract. If this is presented in court, the action can fail. The liability for the negligent misstatement depends upon the existence of a ‘special relationship’.
As in the case of Headley Byrne & Co. v Heller & Partners Ltd (1963), the House of Lords stated: that in certain circumstances, damages may be recoverable in tort for negligent misstatement causing financial loss. With TLC and Answer Ltd, a duty of care arose from the ‘special relationship’ between the parties. Answer Ltd was in breach of that duty of care and TLC suffered a loss as a result of that breach.
It is now clear that TLC can claim damages under the principle in Hedley Byrne, where a negligent misstatement has induced them to enter a contract. As in the case of Esso Petroleum Co Ltd v Mardon (1976), it was held that the maker of the statement owed the defendants a duty of care because they knew they were relying on their knowledge and expertise. Answer Ltd therefore, was in breach of that duty of care because they knew TLC depended on their knowledge and expertise but instead chose to lie and caused significant loss/ damages to TLC’s business.
TLC may also be able to rescind the contract. Rescission aims to restore the parties to their pre-contractual positions. TLC had losses, and they may be able to be put back where they were before the contract was made. As in the case of East v Maurer (1999), it was held that an attempt to put the plaintiff into the position he would have been in had the representation not been made, may allow the recovery of certain types of loss profits including hypothetical profits. This rescission may allow TCL to get all the profits they lost. It was also held in the case of Doyle v Olby (iron mongers) (1969), stated that the defendant will be liable for all losses which can be shown to be the consequences of the false statements without being limited by the normal rules of remoteness.
Overall, TCL Ltd is liable to win the case and receive their award of damages from the losses they incurred.
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