Task 1

Task 1. 2

"The function of the judiciary is to adjudicate disputes in the society. The only lawful

choice available for a citizen to redress grievances is to resort to Courts. Thus the

Courts must not only be accessible to the people but must also provide speedy

decisions. The laws enacted by Parliament would be meaningless unless the Courts act

independently"

In the light of the above statement discuss the importance of an

independent judiciary. (P1.2) Assignment

The purpose of the law is to uphold the rights of individuals. Each and every person

have right to live freely. Therefore the law is very important for;

a) To maintain law and order and

b) To protect society

The legal system of a country is composed of the main three organs of the government,

the legislature, the executive and the judiciary. The three institutes are contributed

simultaneously to run the legal system of that particular country. Further the judiciary is

the main organ which causes maintain the law and order and the protection of the

society. Therefore it is the closest organ to the laypersons.

Due process is a distinctive feature of a legal system. It says “no person can be

convicted or can be made an order against by a court except by following established

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and known procedures.” 1 In an opinion by Justice Powys, explained the meaning of

"due process of law":

Due process consists of three features;

1. the legal proceeding is open to public;

2. every party has right of to be heard; and

3. Judges are impartial.

The courts are well positioned to take objective view of the matter come before it.

Proceeding is not subjective and not depends on person or not differs from person to

person. Due process ensure the concept that, ‘justice must not only be done, but seen

to be done.’

Therefore it is very clear that independence judiciary is an essential element of a

country which establishes a better governance in the society. If the judiciary is not

independent due process will not enforce within the legal system.

Separation of power is an important concept of democracy. The three organs of the

government must exercise their powers independently. Therefore a separate judicial

organ in a legal system is built and protects the separation of powers. Same time it

protect the organization of checks and balances of the system. Each organ must vest

powers to inspect the functioning of the other branches. Specially the court is essential

to inspect the executive and the legislature. In many system it is alleged that the role of

the executive cause breach the fundamental rights of the citizens.

The judicial branch is responsible for interpreting statutory laws and the constitutional

provisions. This suggests that the court is vested with vast powers and even a law that

was passed and implemented by the legislative and executive branches can be humped

by the judiciary procedure if the law is not just and equitable. These things have

1 An Introduction to the Legal System of Sri Lanka, L. J. M. Cooray, ISBN 955-8733-18-0, Stamford Lake (Pvt) Ltd. Ch 5 p 156

happened in many legal systems and even in Sri Lanka recent Supreme Court

decisions were vastly discussed. These can make the judicial branch popular among

the people and can stand as an independent body, but may not please the rest of the

organs of the government.

Any how it is clear that an independent judiciary is important as the only lawful choice

available for a citizen to redress grievances they face. Therefore it is important to

provide some relief for the people who suffer from many disputes. As once Indian ex CJ

expressed the parliament only make the skeleton of the law and the court build the rest

of the figure by adding the flesh to it. This is sufficient to understand the importance of

the judiciary.

Task 4

The Legal Profession is one of the most lucrative professions in the country.

Nevertheless those in the Legal Profession are subject to duties, obligations and

responsibilities. The representation of rights and interests of the client in Courts is at the

heart of the legal profession. However, the priority, in terms of a lawyer's duty, is to

assist and lead the courts to mete out justice to concerned parties. Therefore a lawyer

must not only work solely -to-promote the interests of his client, but also to ensure

justice and fairness are meted out to the society at large. Hence the Prime duty of a

Lawyer is to strike a fine balance between the rights and interests of his clients and that

of society.

In the light of the above statement;

Task 4.2

(a) Discuss if a lawyer should be immune from liability for the

negligent conduct of a case in court Reference should be made to the

duties and responsibilities of a lawyer towards the courts and his

clients in an adversarial system (P4.2) Assignment

Law is a very important to protect freedom and rights of people. The society is not fair

automatically. If there is no rule of law, the people who have more power will enjoy more

freedom. They may aggrieve the others. This is what we call as the rule of wild. Victory

is always with the mighty creature. Weaker one always inherits the defeat. But as most

developed organisms on earth we cannot allow this in our society. Majority of the

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society are ordinary people. The law will empower them and promote them to equal

states with other.

There are many professional harms find in legal profession which makes it defame.

Refusing to represent a client for political or professional motives, false or misleading

statements, failing to disclose all relevant facts, hiding evidence, abandoning a client,

arguing a position while neglecting to disclose prior law which might counter the

argument, some instances having sex with a client are most common problems found

in present legal profession are some of them.2

In legal profession as happen in many other professions there are violations of

professional responsibilities.3 They can be identified as most considerable and

significant drawbacks of legal profession. Same time they are against their code of

ethics which must obligate as a professional. On the other hand these violate the duties,

obligations and responsibilities of a lawyer to his clients and to the court.

If a lawyer is representing both sides in a case or previously represented one side of the

same case there can occur a conflict of interest. Under the adversarial system of justice

this becomes a more contrasting issue. Because of it violates the right of each client to

the “undivided, zealous loyalty” of his or her lawyer. If there is a loyalty to another client

because of a personal relationship or other reasons it also can lead to conflicts of

interest. Therefore he should not accept cases in which there is conflict of interest.

Lawyers have a duty to provide competent representation to his client. The failure to

observe deadlines or conduct thorough research is considered a breach of ethics of

legal profession. If this happen through the negligence of the lawyer it is a serious issue

which directly cause breach of rights of the client.

Clients pay money to lawyers for various reasons. It is a right of a client to aware the

expenses of the lawyer. The lawyer must keep money in special client trust accounts

2 3

until it is actually earned by him or spend on court fees or for other expenses. The

money transactions should be transparent.

Attorneys may not split fees with others. As an example he must not split it with non-

attorneys or other attorneys who have not worked on the case. If he does so it

increases the cost of client. The money of the client should only spend on the parties

which have a direct relationship with the clients’ case.

Attorneys are under a strict duty of confidentiality to keep information received in the

course of their representations secret. Absent law to the contrary, lawyers may not

reveal or use this information to the detriment of their clients.

An attorney may not communicate directly with a person who they know to be

represented by counsel with respect to a matter for which the attorney is seeking to

communicate. For example, in a civil suit, the plaintiff's attorney may not speak to the

defendant directly if the attorney knows that the defendant is represented by counsel

without their attorney's express consent.

Attorneys generally may not solicit business by personally offering their services to

potential clients who are not already close friends or family members. Advertising by

attorneys is also strictly regulated, to prevent puffery and other misleading assertions

regarding potential results.

When focus the above duties and responsibilities it is clear that a lawyer is a person

who does a critical role in the society. Sometimes he deals with life or death issues and

can be lead to a disaster. Therefore according to above discussion it makes clear that

there is a little room for errors in the legal profession.

Negligence is one fault which cannot be excused in that sense. A lawyer may charge

comparatively higher charges from his client. But he must provide a proper service to

the client acting in bona fide. If the lawyer just focuses money and acting negligently it

violate the ethics if legal profession and such persons are not suite to carry out this

profession.

Task 4.2

b) Suggest reforms to the legal profession in Sri Lanka to ensure that

justice is meted out and means to eradicate laws delay. (P4.3)

Assignment

The legal service is not considered as unconditional right. Therefore the governments

do not have an obligation to provide legal service free. Usually attorneys charge higher

fees for their services. Over billing is a major problem in modern litigation. This has lead

to a social dilemma at the present society.

Today lawyers work with too many cases at once expecting economical benefits. This is

a cause for malfunctioning of a lawyer. Legal malpractice is attorney fails to adequately,

professionally, competently, or zealously represent a client due to negligence.

Malpractice and misconduct may often be found in the same matter. It is breach

of fiduciary duty or breach of contract by an attorney that causes harm to his or her

client. Negligent of a lawyer can result a great disadvantage to the client. When an

attorney breaches a fiduciary duty to his client a Legal malpractice can occur. Here the

lawyer acts in their own interest instead of to his client's and it become the cause for a

detriment to the client. A legal malpractice arise a ground for claim. As an example if an

attorney misses a deadline for a filing of a paper with the court, such as a fundamental

right case where statute of limitations and this error have is related to the loss of the

client's cause of action.

Legal profession provides an essential duty to the society. UK legal profession has a

division as solicitors and barristers while Sri Lanka has Attorneys at law without any

division. Improper solicitation and advertising, Communication with represented parties,

Disclosure of confidential information, Fee-splitting arrangements, Mishandling of client

money, Incompetent representation and Conflicts of interest are some of the drawbacks

found in many countries’ legal professions. There are many regulations to optimize the

conduct of the lawyers, and yet to be revised.

Therefore the only possible way of reversing these drawbacks is strengthening the code

of conduct of

Task 5

Task 5.1

Discuss the importance of resorting to ADR as opposed to court

litigation (P5.1) Assignment

Traditional litigation mechanism is link with inherited defects such expanding the

number of claims and delaying, increasing the costs and therefore has become limited

accessible option for many people.4

In addition to these there are many other detriments visible in litigation procedure. They

are complexity of legal procedure, high cost of legal representation, has an adversarial

nature of court action which spoil the relationships between parties, Intimidating

surrounding of courts and public nature of court action which reveal and destroy privacy

of parties. Therefore many cases which refer to litigation in order to obtain a better

result end up giving frustration to parties. Because of this even the winning party unable

celebrates their victory as they have to face the entire potential defects link with the

court proceedings.

ADR is ‘one for all’ solution as the parties can refer it as soon as the dispute arises. This

is possible because it is a less formal procedure. But court or administrative procedures

4 F. B. Kotler, Alternative Dispute Resolution [ADR] for Workers Compensation in Collective Bargaining

Agreements: An Overview (Cornell University, New York, 2012) 3 available from:

<http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1043&context=reports> accessed 17

December 2013

are comparatively complex and formal which make it harder to reach. ADR process is

very fast in compare with the litigation.

The significant advantage of ADR is an expert in the field can be appointed as the

intermediate person in complex or technical issues. As an example in arbitration usually

the arbitrator in such issues is an experienced worker in the field. 5 Arbitration involves a

neutral third party who hears the case and makes the decision stand on the evidences

present by the parties. Therefore it is an information gathering process 6 which refers

the dispute actively and deeply before reaches the final decision.

ADR can be considered as an alternative to litigation process. But it is rather different

than the litigation procedure. Though there are hearings in ADR it is not like in a court

hearing. In arbitration hearing the arbitrator may ask questions while the hearing. Same

time there is no formal cross examination procedure as well as swearing of oaths. 7

Therefore it makes clear that the procedure is less formal than a litigation procedure or

an administrative hearing.

One common feature of ADR is the voluntary access of it and therefore can be

considered as private dispute resolution methods. 8 If they select it the decisions of it

are bind on parties, subject only to limited review. 9

In ADR proceeding legal representation is optional and the parties can appear

personally before the tribunal. 10 The parties can decide whether the dispute resolve on

basis ‘general justice and fairness or trade usages’ or other rule of law they choose.11

Hence he has offered wider freedom to make the procedure less formal and flexible.

5 Ibid 6 S. C. Bennett, Arbitration: Essential Concepts (AML Publishing, New York, 2002) 47 Arbitration (ACAS, 2013) available from: <http://www.acas.org.uk/index.aspx?articleid=1711> accessed

17 December 20138 S. C. Bennett, Arbitration: Essential Concepts (AML Publishing, New York, 2002) 49 Ibid10 Ibid, s 2311 Ibid, s 24

Therefore it can be sum up the advantages of ADR as that the procedure is simple,

less expensive and no legal representation is required, not involve adversarial system

and do not destroy the relationships between litigants, consist of pleasant atmosphere,

the action is private and solution acquire quickly.

The Scenario

Simon is a pet lover who is a master of 3 Dogs. Romeo who is a flower supplier, owns a

flower garden. Simon and Romeo are neighbours and live in a remote village located

about 500km away from the city. The village is largely an agricultural area and has a

very limited population. Both of them dropped out of school before they finished

schooling. The name of one dog owned by Simon is Rex. Rex is not well tamed and has

the habit of breaking in to Romeo's property and his flower garden and causing

damage. On one occasion when Rex broke in to Romeo's property, Romeo beat it with

a stick which fractured Rex's leg. Simon, who is well known for his short temper,

stormed in to Romeo's property and destroyed his flower garden in revenge. Romeo is

claiming damages for destruction caused by Simon and Rex to his property. But Simon

refuses to pay on the ground that Romeo exercised cruelty on his pet. Lawyers do not

live in this village because the nearest court is located about 300KM away.

Task 5.2

In reference to the above scenario, state whether Simon and Romeo

should resort to Alternative Dispute Resolution or Courts to resolve

their dispute. (P5.2) Assignment

ADR is available for the resolution of disputes in lieu of litigation. They are operating

focusing settlement than competing. There are many types of

Alternative Dispute Resolution mechanisms such as mediation conciliation and

arbitration.

In Sri Lanka arbitration and mediation are mainly used as Alternative Dispute Resolution

mechanisms. Labour tribunal, Rent board, Commissioner of labour, mediation board

and ombudsman are ADR methods that currently operate in the country.

In this scenario Simon and Romeo have a dispute about damages for destruction

caused by Simon and Rex to Romeo’s property. However Simon refused to pay the

damages on the ground that Romeo exercised cruelty on his pet.

Here there are grounds for both civil and criminal actions arise by the facts of the

scenario. The act of Simon, entering in to Romeo's property and destroying his flower

garden is amount to file a criminal action. There Romeo must make a complaint at the

police to start the criminal proceeding. The action files by the police against the Simon.

Same time Romeo can bring a civil action at District Court against Simon to recover his

loss. But the scenario says because the nearest court is located about 300KM.

According to the scenario their village is largely an agricultural area and has a very

limited population. The other factor is they need lawyers to appear for them but lawyers

do not live in this village.

The other factors must consider here is the complexity of the legal procedure,

adversarial nature, public nature, time and the cost must bear in litigation. On the other

hand Simon and Romeo are villagers and neighbours.

Therefore litigation procedure cannot recommend for them. The better option available

for them is referring the case for the Alternative Dispute Resolution. The ADR procedure

is less expensive than the litigation. Same time no need legal representation. They can

appear for themselves. It has no complexes or fewer complexes within the procedure.

The ADR is available nearby. Mediation Board operate in each divisional secretariat

area. The most important factor is it is less time consuming, the resolution can reach

within a short period of time. The other important factor is it is not adversarial nature, but

the settlement basis. More therefore it will not harm to their neighbouring relationship.

Therefore it is clear that Simon and Romeo have more advantages from mediation than

the litigation. They can settle the case by involvement of mediators and they will

suggest a resolution for the dispute. The decision is not legally binding. If they do not

satisfy from the decision of the mediation board they can refer the case to the District

Court with the certificate of non settlement. Because of though they refer the case to the

District Court straight forward the court may refer the case back to the mediation board

to seek for a settlement. According to Mediation Board Act the cases which are less

than Rs. 25000 value must refer to the mediation board first.

Therefore the better option is referring the case to the Alternative Dispute Resolution

not to the court litigation.

Task 5.3

Identify the most appropriate ADR available for both Simon and Rome

and give reasons for same. (P5.3) Assignment

Arbitration, mediation and conciliation are major tree methods of ADR operating at

present. Arbitration established in Sri Lanka by the Arbitration Act 1995. Mediation was

established under Mediation Board Act 1988 and Conciliation established under

Conciliation Boards Act 1958. These can be identified as the available ADR options for

Simon and Romeo.

Arbitrator acts the leading role in arbitration and he is an expert of the relevant field of

dispute. In arbitration parties to the dispute give their consent to resolve their dispute

through the arbitration. In arbitration the arbitrator decides the dispute according to the

available law. He can grant legally binding resolutions. The decisions of the arbitrator

can be enforced through the courts. In conciliation conciliator acts the leading role and

interferes to a dispute more actively. Not like the mediator the conciliator recommends

possible elucidations and solutions.

Though arbitration and conciliation are available for Simon and Romeo the procedures

have comparatively more complexities and practical impossibilities. The best and

practicable option is mediation. In Mediation mediator acts the leading role and assists

both parties to come to conformity. If they come up to a settlement can present as a

contract between them. Minor offences and disputes refer to it and rather informal

process and no legal representation is allowed. Mediation Boards are located in each

divisional secretariat area. Therefore mediation is more accessible to Simon and

Romeo.

The mediator as he is a neutral person and is facilitates opportunity for discussions

between Simon and Romeo. Mediation board process usually takes short time to attain

a final decision and the costs significantly less. In addition in meditation Simon and

Romeo have more flexible in selecting, which rules must apply to settle their quarrel.  

When consider economical and social backgrounds of two disputants the mediation can

be recommended. When consider other ADR methods such as arbitration and

conciliation they are comparatively harder to reach. In that sense the mediation board is

only available option for them if they refer their case to mediation in lieu of litigation.