Alternative dispute Resolution

Alternate Dispute Resolution is a mechanism that was introduced to provide an alternative method to resolve disputes outside the actual courtroom.

The method closest to the official legal system is thought to be tribunals. Tribunals are exclusively judicial bodies that operate in a way which distinguishes them from courts. Tribunals are a branch of court system established by the Acts of Parliament to deal with disputes between the citizen and the state or between two individuals. Tribunals are composed of a legally trained chairperson along with two lay people who are experts and specialised in the fields. They are generally distinguished from the courts by their less formal procedure and by the fact that they operate in less specialized areas and their decisions are based on laws of a particular organization. If a case is dealt in first tier tribunal, the appeal will be made to the upper tribunal , then to the court of Appeal and then the supreme court. The administrative justice and tribunals council was replaced in 2007 and was set up under the Tribunals court and enforcement act 2007 which keeps the work of Tribunals under review and reports on the constitution and working of tribunals.

The main purpose of Tribunals was to take the pressure away from the courts of solving small disputes so more time can be spent on cases with greater need. Although , tribunals mirror the court system , they are informal , the cost is minimalist as no court building is required , the panel is cheaper to employ than the costs of judges used in the traditional court system , it is easily accessible , free from technicality , an expert is required in that particular field of dispute and as the decisions are not based on precedents , they are flexible. However ,the strict rules of evidence are relaxed as the proceedings are informal , wigs are not worn and the use of lawyer is not encouraged even though lawyers may sit as legally trained chairperson who is expected to take an inquisitorial approach.

Subsequently , Arbitration involves introducing a third-party known as an arbitrator into the dispute so that it can be resolved .this process looks very much similar to a court trial , both having an opening statement , testimony , evidence , witness , cross-examination , and closing statements. The arbitrator then closely evaluates the information and delivers a binding decision which is called an award and can be enforced through courts if necessary . In some cases , the parties may opt for a paper arbitration where two parties write down points they wish to raise and submit with relevant documents.

Arbitration is regarded as private procedure where the public cannot gain access to any information that could at all affect either parties or the arbitrator , producing safe and fair proceedings. In addition , as there are only 3 people involved , the dispute is resolved quicker compared to the cases that adopt the formal legal proceedings as professional representation is not needed. The use of arbitration is very flexible as the parties choose what suits them , this results in an informal procedure as the meetings are arranged in accordance with the parties’ schedule and geographic location. However , it could be suggested that because it so privatized , the public are denied the right to know any information that could affect them .  If a professional arbitrator is used , that will be costly . The rights of appeal are limited , if the matter will not resolve , then it will be necessary to go to court. In addition , if one party decides to challenge the decision made in the process , then it becomes time-consuming and costly to all parties as legal representation will be required.

Mediation is a further form of ADR which involves inviting a third person known as a mediator , as a means of expression , with no power to impose a resolution , helps the disputing parties to reach a mutually acceptable settlement . Mediators are individuals who are trained for negotiation , communicating the parties’ opinions. A mediator will not tell his view of the merits of disputes unless asked , which then becomes more of an evaluation exercise also aimed at ending disputes.

The process is such that the mediator opens the dialogue with parties . He encourages them to describe their issues and their opinions about how the dispute should be settled . This way the other party will be able to rationalise the problem that is coming in their way to settle the dispute .

Mediation can be arranged  within a matter of hours decreasing the costs . Further , litigation entails privacy issues where mediation is confidential and rather than having a winner/losing , there is a mutual agreement to where both parties occur a benefit. Mediation promotes communication and collaboration between the parties. It is based on commercial common sense and makes it easier for companies to continue doing business. However , if an agreement cannot be subdued by both the parties , then the process will be time consuming and very costly .

In addition to mediation , the process of conciliation has been introduced as a form of ADR . It’s advancement on mediation in terms of the third-party (conciliator) being able to suggest and enforce the grounds for which a compromise should be made . He identifies the objectives of the parties , conducts the proceedings himself by asking the parties to prioritize their objectives . He starts with a minimum concession then moves on to maximum .

Negotiation is a form of ADR in which the negotiator helps two or more people arrive at a mutually acceptable agreement . If the parties cannot , then their solicitors negotiate.

ADR is a great alternative to get justice as it has a major impact on the way disputes are resolved . It is encouraged by the courts and in some cases enforced.



Statutory Interpretation

Statutory Interpretation is an exercise carried out by the court, with the aid of rules and procedures that are intended to decipher vague and ambiguous legislations.

A statutory Interpretation is needed because of drafting error in the original bill which the parliament did not notice, a word has two or more meanings and it is unclear which meaning should be used , words designed to cover several possibilities can lead to problems as to how wide this should go , new technology may mean that an old act does not cover present day situations and meaning of words change over time.

Problems of interpreting statutes?

The problems with interpreting statues is that Judges have to decide what parliament meant by a particular piece of legislation. In most cases judges correctly judge as to what the intentions of parliament was at the time of passing the law and whether it still applies in the present time. However, judges can often miss-interpret the act or legislation.

How judges deal with problems of statutory interpretation?

  1. Presumptions

A judge begins by assuming certain things:

  1. Common law will always apply unless the act says in clear words that there can be changes,
  2. Without mens rea , the conviction of a crime will not be made ,
  3. The crown court is not bound by an statute unless the statute says so ,
  4. That parliament has not changed the law ‘retrospectively’ (that the statute does not effect past acts, to make illegal something that was legal at the time it was done),
  5. Not to break any international law.

2.Rules of language which make the phrases clearer are:

  1. A) Ejusdem generis (of the same kind) – a list of words is followed by general words , the general words are limited to the same kind of items as the specific words (for example, ‘tradesman, workman, labourer or other person whatsoever’ will only cover person of a similar type).
  2. B) Noscitur a socis (known by the company it keeps) –words must be looked at in context and interpreted accordingly ; it involves looking at other words in the same section or other sections in the act i.e. ‘floors,’ in the expression ‘floors, steps, stairs, passages and gangways’ was interpreted to cover floor along which persons walked as opposed to any storage space.
  3. C) Expression unius est exclusion alterius (the expression of one excludes others) –a list of words not followed by general words , then the act applies only to the items in the list(for example the express reference to ‘coal mines’ may exclude reference to other types of mine.)

 The Literal rule is under the view of literal approach which the judges consider what the statute says rather than what it could mean. The words are interpreted as it’s plain and ordinary meaning even if there is a risk that it would bring absurd and unjustifiable results. For eg , in Whitley v Chappel , a man who impersonated a dead person to vote was charged under a section which states that it is illegal to impersonate any person entitled to vote . However , the judges decided that he was not guilty as the court literally interpreted that a dead person is not entitled to vote. However , in Fisher v Bell , Mr Fisher was charged with offering the sale of flick knife , but could not be convicted as he had only displayed it in his shop window and this was not a criminal offence . The difficulty in this case was to interpret the word offer.

Advantages :

  • It does not question Parliament , therefore , upholds the law made even when it seems illogical thus preserving the separation of powers,
  • It fits easily in the constitutional principle without causing much problems.

Disadvantages :

  • It creates loopholes where discrepancies in interpretation of the literal meaning occur , as it is ineffective in identifying limitation and complexities in English Language .
  • The case of whitely v chapel prove that this rul leads to an absurdity .

The Golden Rule is only used if the judges apply the literal rule and find that it leads to absurdity . This rule is a revised version of the literal rule , as some attempt is made to put a word into it’s proper context . It is basically reverting to the literal rule but judges consider contextual alternatives. It is used by courts when a statutory provision is capable of more than one literal meaning and leads to judges to select the one word which avoids absurdity or wherw a study of the statute as a whole reveals that conclusions reached by applying the literal rule is contrary to the intention of the parliament. This was illustrated in Re Sigsworth , in which a man killed his mother for the sole purpose of inheritance of her assets but was denied because of criminal behaviour even though he was the next of kin.

Advantages :

  • Judgements are usually parallel with the legislation and errors in drafting are amended before awkward precedents are set , thus closing loopholes .
  • Using common sense within law usually provides justice restoring public confidence in the legal system.

Disadvantages :

  • It is problematic as the judges have the power to interpret the statute as they wish , changing or adding to it’s meaning .
  • It flouts the separation of powers

The mischief rule is close to the purposive approach but it offers more flexibility to the judges as it requires looking at the past laws and statutes to find the gap (ultra vires) to recover and provide a suitable remedy for it .This was illustrated in Corky v Carpenter , the licensing act 1872 stated that it was an offence to be drunk in charge of a carriage .While no direct reference was made to the bicycle , the court ruled that the defendant was guilty as the term carriage could also be applied to bicycle.

Advantages :

  • This rule is used if there is still ambiguity even though it had been followed in the literal and golden rule ,
  • It gives more leeway in the construction of statute ,
  • The scope of this rule is that it does far more than allowing the judges to choose between the different meanings of the statutory language or infer into the statute a small number of words.

Disadvantages :

  • This rule would indirectly make the judge to have the role to make law , thus , the separation of powers would be voided in such circumstances.
  • This rule would be able to bring in the subjective case such as the morality and prejudice.

The purpose approach : is widely used in interpreting statutes as it strongly rejects the judge’s limitations on searching the literal meaning of the words in the statute itself(what Parliament intended when passing the new law). The approach enables the judges to look beyond the words of the statute in search of the reason of enactment. The legislation tends to set out the general principle and the fine details would be left to the future to fill in the gap by the judges in later cases , hence ensuring to cover the purpose now.

In order to find out the intention of the Parliament , the courts opt for extrinsic aid as it allows the judges to take help from matters that are outside the act . These include previous acts of Parliament , earlier case laws ,Hansard ,  historical settings and dictionaries of that time . Intrinsic aids are matters within the statute that may help or clear up the intention of Parliament . These include long title  short title and preamble if any .


Cases on Equity (use them in your answers)

Anton Piller v Manufacturing Processes ltd (1976) : the plaintiff made electrical equipment and unemployed the defendans as their agent in the UK. They suspected that he was selling their technical drawings to competitors and so applied for an order. The court held that an ex parte mandatory injunction would be granted to allow the claimants to enter the defendant’s premises and inspect relevant documents.

The aim of equity to go further than common law in addressing harm was affirmed in Harris v Digital Pulse pty ltd (2003) , the court of appeal came to the decision that exemplary or punitive damages are not available for breach of fiduciary duty and , hence , it was ordered to return the claimant back to his position before the breach.

Equity will not suffer a wrong without a remedy :

Ashby v White : a qualified voter was not allowed to vote and who , therefore , sued the returning officer . It was held that if the law gives a man a right , he must have means to maintain it , and a remedy , if he injured in the enjoyment of it .

He who comes to Equity must come with clean hands :

Tinsley v Miligan : Both the parties to the case jointly purchased a house but the conveyance was made in the name of the plaintiff only ( in order to make fraudulent claims to housing benefit) , who , after an argument moved out , claimed possession and asserted her legal title . Miligan admitted making fraudulent claims and now sought a declaration that tinsley held the house on trust for both of them . T contended that since Miligan could not make her claim without admitting the evidence of her fraud , the court would automatically refuse to enforce a trust in her favour .

Equity looks to the intent not the form :

Berry v Berry (1929) : a deed was held to have been altered by a simple contract ,common law stated that only another deed could alter it . Equity decided that as parties intended to alter the deed , then it would be fair to look at the intention , rather than the form  .

He who comes to equity must come with clean hands :

Highwaymen : two robbers were partners in their own way . Due to a disagreement in shares , one of them filed a bill against another for the accounts of robbery. Courts of Equity do give relief but this was a case where the cause of action came from an illegal occupation . So the courts refused to help them .

Delegated Legislations

Delegated Legislation is the law made by a person or body other than Parliament but with the authority of parliament . In other words , it is the law introduced in Parliament with broad principles which are later filled in by non-elected bodies with expertise in particular fields who have law making powers.

Delegated Legislation was introduced because there were some occasions whereby quick decisions were needed to be made which could not wait for a parliamentary meeting , parliament doesn’t have time to debate on laws that must be passed to ensure the smooth-running of a complex modern society , it does not have time to deal with all the primary legislations , it doesn’t have the technical ability required  and because delegated legislation can be amended or revoked quite easily by another statute.

There are three main forms of delegated legislations :

  1. Statutory Instruments : are created by government departments for areas under their supervision. The parent act gives the department the authority and guideline on how the new legislation can be implemented and drafted ; they give the government departments the opportunity to introduce new laws and change them.
  2. By Laws :  are made by local authorities but have to be approved by the central government . By laws can also be made by public corporations and certain companies within their jurisdiction.
  3. Order of Council : are made by the Lord of privy council and are presented to the Queen for final authority in time of an emergency when Parliament is unable to meet and discuss.

Under Parliamentary control , statutory instrument can become law in two ways :

  1. Negative resolution : If statutory instrument has to become law , it has to have been drafted and should be presented to Parliament within forty days ; if it faces no motion of cancellation , it becomes law immediately .


–  Limited effect, as there is no requirement for MPs to look at the Statutory Instrument.

–   Most Delegated Legislation is not challenged and automatically becomes law after 40 days.

However, this method of control does give opportunity for any member of either House to raise objections.This in turn may provide for more debate and consideration to be given to the provisions of the Statutory Instrument.

   2. Affirmative resolution : Through this , a statutory instrument cannot become law unless it is approved specifically via votes of the members . this system is quite effective as it ensures that Parliament pays attention to the legislation , though parliament cannot amend it . However , validity of delegated legislation can be challenged under judicial review where judges in the QBD of the high court , review the decision of the lower court . The court in most cases can overrule the decision if it agrees with the complaint.


– Time consuming – contradicting one of the main aims of Delegated Legislation.

– Statutory Instruments cannot be amended by Parliament, only approved, annulled or withdrawn.

As the Government Minister is part of the Government, they will normally get most of the votes.

– As a result of these disadvantages the affirmative resolution is not used very often.

However , with affirmative resolution the Statutory Instruments must always be debated by parliament and it is therefore more effective than some of the other controls.

Parliament delegates it’s authority to produce legislation but it retains responsibility for all delegated legislations created in it’s name . In addition Parliament has a house of Scrutiny Committee that can decide whether provisions in  a bill to delegate legislations are inappropriate . It’s report is presented to HOuse of Lords before the committee stage but cannot amend it . Judiciary has the power to review legislations and to declare it void . If it goes beyond the power granted in the parent act , usually the application of ultra vires become difficult because powers are usually conferred in broad language , the courts interpret the enabling provision rather broadly and the courts adopt a critical attitude towards delegated legislation.

Parent (or enabling Act)

·         By this piece of primary legislation, parliament gives authority to others to make                 law.

·         The parent act will enable further laws to be made under this authority.

·         The enabling Act contains the outline framework of the new law.

·         Within the Act there will be authority for specific person (such as a Government                  Minister) or body (such as a local authority) to make further more detailed laws.

·         This Act will specify the area within which law can be made any procedures that                 the delegated person or body must follow when making the delegated laws.

·         Law making power is only given to person or body best equipped with the                           knowledge and resources to make the type of law required.

·         If power is given to local authority then these persons will have the required                      knowledge.

·         If power is given to another body, such as a train or bus company, it will be given to           make laws in respect of their property, (e.g. the enforcement for payment of fares).


Judicial Precedents

Precedents are the decisions of the judges . Judicial precedent is the process whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the principle of stare decisis , i.e , to stand by what has been decided . The decision of judgement may fall into two parts : the ratio decendi ( principle of law on which a decision is based ) and obiter dictum ( the judge may go onto speculate about what his decision would have been if the facts were different ) .

The fact of the operation of a precedent is that every court is bound within its hierarchy . Decisions made by the European court of justice are binding on all courts up to and including the House of Lords. The HOL was bound by its own previous decisions.  Because this rule was rigid , Lord Gardiner announced in 1996 ,  a change of practice which allowed them to depart from their previous decisions when it appeared right to do so . Decisions made by them become binding on all the lower courts . Below them is the court of appeal which is bound by the decisions of the HOL even if the decision is considered to be wrong . The HOL is bound by their own decision unless it is giver per incuriam or the previous decisions conflict . These decisions are bound on the High courts and county courts . However , in criminal division of the Court of appeal , the precedent is not followed as a persons liberty may be at stake . Below them is the high court , decisions made by them is binding on the county courts.

A previous case is only binding in a later case if the legal principle involved is the same and the facts are similar. Distinguishing the case on its facts , or on the point of law involved is a device used by judges usually in order too avoid the consequences of an earlier inconvenient decision which is , in strict practice , binding on them .

A higher court can overrule a decision made in an earlier case by a lower court , eg, the c.o.a can overrule an earlier high court decision . Overruling can occur if the precious court did not correctly apply the law , or because the later court considers that the rule of law contained in the previous ratio decendi is no longer desirable .

Reversing is the overturning on appeal by a higher court of the decision of the court below that hears the appeal . The appeal court will then substitute its own decision .

Such a system is considered to be rigid because under the rule of binding precedent , the judges will have to follow even if the decision is inappropriate or bad . There are many illogical distinctions as the judges can differentiate a precedent they consider inappropriate because of the minute distinctions between the facts of a similar and previous case . There are so many cases that it is hard to find a relevant case . Case laws can only change if a real case is brought. This requires someone to have the money to bring such a case . The overruling of an earlier case may cause injustice to those who have ordered their affairs on it . This system also restricts the development of law as it leads to distinguishing and hairsplitting decisions which rule the law unnecessarily complex and it is difficult to distinguish between ratio decendi and obiter dicta like in the case of Donoughe v Stevenson.

In contrast , it provides certainty to the law and has made the law more predictable . Precedents are becoming more flexible in order to meet the need of the society , for eg , the supreme court announced in 1996 that the judges would no longer be bound by their decisions . If the judges are able to distinguish enough material differences in facts between the earlier cases and the current cases , then they can avoid following the decisions made previously . If a judgement made by an inferior court was found to be incorrect , then a superior court can overturn the decision in appeal as illustrated in Pepper v Hart 1993 . Precedents assist litigants to asses the nature of scope ,enables the to predict the likely outcome of disputes and restricts the scope of litigation . It leads to an orderly development as lower courts follow the higher courts , rules of law based in this system exhibit certainty , consistency and precision because disputes are settled in the shadow of law.




Common Law and Equity

Common law or case law is basically law made by a judge . Common law developed from customs and judicial decisions. But , there were many defects in the common law . For example , the common law courts used juries who could be intimidated and corrupted , the only remedy common law provided to every problem was of damages (money compensation for the loss which was inadequate ) , it paid too much attention to formalities , for example , if a contract was made which required written evidence for it’s enforcement , then lack of such evidence meant that the common law courts would grant no remedy and the common law courts didn’t recognize trusts.

The inadequacy and inefficiency of the common law courts became increasingly obvious and intolerable , and because of this , Equity was introduced by Lord Chancellor which filled the gaps between common law and softened it’s strict rules.

Equity is a modern body of legal doctrine that serves to supplement the coercive old law . A righteousness that considers all the particular circumstances of the deed , tempered with the sweetness of mercy . It is a set of maxims , rules , rights and remedies that reign over the law and from which flow all civil laws . Equity resorts to the principles of justice and fairness and it comes into play when none of the parties to the dispute has done anything against the law , but their rights and claims are in conflicts . It is the modification of the common law , justice tempered by ethics and applied in conformity but influenced by the principles of  ethics and fair play.

However , in its early years , the equity system was largely viewed as being against common law . While common law courts were in favor of one party , the court of Chancery favored another so there was chaos . This dispute was finally resolved in the Earls of Oxford case when the king ruled that Equity should prevail.

Equity redressed the situation in a way , common law remedy of damages could not . The common law strictly applied the doctrine of stare decisis which means that it did not develop with the change in time but equitable remedies changed with time . It removed the system of corruption as a case could not be won by appealing to the jury but substantial evidence had to be provided to prove the point.

Equity was not bound by the writ system and the cases were heard in English instead of Latin , Chancellors did not used juries concerned himself with questions of facts and he issued subpoenas .

Common law treated mortgages like contracts , hence , any failure to discharge the loan by a specified date would result in the mortgaged property being forfeited to the lender despite the borrower still being liable to the debt . Hence , equity of redemption was developed which enabled the borrower to keep the property even though the date for repayment had lapsed , providing the loan and interests were repaid.

Equity created new rights by recognizing trusts and giving beneficiaries against trustees. If a testator by will transfers property to his brother requesting him to hold the property for the exclusive benefit of his son , the common law would only recognize the rights of the legal owners. Hence , if the brother defaults in his obligation under the trust , equity intervenes to ensure that the son is not caused any injury by ordering the legal owner to hold the property for the benefit of the equitable owner.

Common law neglected the rights of women by considering them non-legal owners of the property . In the late 70’s , Lord Denning developed this to ensure that the non-financial contributions to the home were recognized and the matrimonial constructive trust was created .

Equitable Remedies 

Injunction : an order to one of the people involved in the case to do something or not to do something . In Mareva v International bulk carriers , a shipowner left the mareva to a foreign charterer who defaulted on payment . Hence , an injunction was sought to freeze the account which stopped the charterer from moving money abroad before the case was heard .

Rescission : remedy which aims to return the claimant as far as possible to their precontractual position .

Specific Performance : is an order to carry out the contract as agreed .

Rectification : an order to amend the mistakes in the documents to reflect the parties intentions .

Search order : allows the claimant to to search the premises of the defendant to remove any document or material which could help the claimant prove the case.

Equitable Maxims : also ensured that equitable relief would not be granted to those who sought it for an inequitable purpose . For example , ‘ he who comes to law must come with clean hands’ guarantees that those who have acted wrongly are not entitled to equitable relief . In Tinsley v Miligan , both the parties purchased a house jointly but it was named after Tinsley . After an argument , T moved out and claimed possession of the property . The courts held that the defendant had the rights in law to assert her equitable ownership. The maxim equity follows the law clearly states that  equity will not allow a remedy that is contrary to law , hence , proving that equity was not meant to  supersede the law where there was already an established fair imperative . Unlike , the common law courts , the maxim ‘equity looks to the intent , not the form ‘ ensures that too much attention is not paid to formalities of a contract. In Berry v Berry , where a deed was held to have been altered by a single contract , common law stated that only another deed altered it . Equity decided that as parties intended to alter the deed , then it would be fair to look at the intent rather than the form.

Paper pattern 

Student appear for p1 and p2 at As Levels . 

P1’s weightage comprises of 30% whereas 

P2’s weightage comprises of 20% 

In paper 1 , there are 6 questions out of which you have to attempt any 3 !! All are essays . Each question is of 25 marks . So a 75 marks paper it is . 

In paper 2 , you have do 1/2 questions . It is a 50 marks paper . It has 4 parts [A , B and C carry 10 marks each where as part D carries 20 marks (essay)]  . It is a problem question in which you are the judge and you have to decide . Legal facts apply but what gets you a band 4 and above is your ability to think along the lines and critically analyze the scenario .