• Commercial Lawyers' Attitudes and Experience with Mediation

      Brooker, Penny; Lavers, Anthony (Web Journal of Current Legal Issues, 2002)
      This paper considers the application of mediation for commercial disputes following the introduction of the Civil Procedure Rules (CPR), which encouraged the use of alternative dispute resolution (ADR). A report is given on a survey of lawyers practising in the UK commercial litigation field and the respondents' experience of using ADR. An analysis is made of the settlement outcomes reported for mediation and respondents' attitudes to the appropriate use of ADR for commercial-related disputes. Mediation, practically to the exclusion of any other method of ADR, is being employed in some sectors of commercial work and survey respondents are repeat-users of the process. The majority of mediations reported concerned breach of contract and professional negligence cases. Data suggests that the specific categorisation of a commercial disputes as (say) professional negligence, personal injury or breach of contact is unlikely to affect mediation achieving full settlement. Commercial respondents were of the opinion that mediation is suitable for a wide variety of commercial case-types but breach of contract, professional negligence, general negligence and debt cases were specifically perceived to be appropriate. Commercial respondents reported that the major determinants for mediation reaching a successful outcome are the attitude and expectation of the parties in taking part in good faith and their willingness to compromise.
    • Retrospectivity and the Human Rights Act 1998

      Glover, Richard M. (Web Journal of Current Legal Issues, 2003)
      The purpose of this paper is to examine their Lordships’ interpretation in Lambert [2001] UKHL 37, [2002] 2 AC 69, HL and in Kansal (No.2) [2001] UKHL 62, [2002] 2 AC 545, HL of the ‘retrospectivity provision’ of the Human Rights Act 1998, section 22(4), and the extent to which their analysis accords with Parliament’s intentions. Key to an understanding of these decisions is the interrelationship between sections 7 and 22(4) of the 1998 Act. I will consider their Lordships’ interpretation of this interrelationship and suggest that it was overly influenced by policy concerns: a fear of uncertainty in the law and of a flood of appeals if the Act were allowed to operate retrospectively. It will be argued that as a consequence of these misplaced concerns and a misunderstanding of the significance of the Act their Lordships erred in their analysis of section 22(4), which does not accord with Parliament’s intentions.
    • Sheldrake Regulatory Offences and Reverse Legal Burdens of Proof

      Glover, Richard M. (Web Journal of Current Legal Issues, 2006)
      This article examines the reverse legal burden of proof upheld by the House of Lords in Sheldrake v The Director of Public Prosecutions [2004] UKHL 43 in relation to the offence ‘being drunk in charge’ of a motor vehicle, contrary to the Road Traffic Act 1988 s.5(1)(b), and the defence under s5(2). It considers two main arguments that arose from Sheldrake. First, that the section 5(2) defence that there was no likelihood of the defendant driving while over the limit forms part of the gravamen of the section 5(1)(b) offence and that, accordingly, a reverse legal burden amounts to a breach of the presumption of innocence. It is argued that this analysis, approved by the Divisional Court but largely overlooked by the House of Lords, is per Lord Bingham “too simple and only partially correct”. Secondly, it will be considered whether some offences, such as ‘being drunk in charge’, may be classified as regulatory on the basis that the offence was concerned with a lawful activity that the defendant voluntarily engaged in that presented a serious risk or danger to public health and safety. It is argued that in this context a reverse legal burden may normally be presumed.