Two Branches Of Law Within The English Legal System And The Usefulness Of Alternative Dispute Resolution In Resolving Legal Disputes

Branches of Law

There are two branches of English Law i.e. Private Law and Public Law and the difference between these two branches occurs mainly in the parties existing in the legal relationship. Private Law indicates rules that regulate the relationship between private individuals, which are subject of law and are in equal situation such as legal relationship between buyer and seller, where both the parties have certain specific rights and obligations (Pearson Education, 2018). The private law includes civil law, commercial law, intellectual property law which comprises of copyright or patent law, as well as international private law. The private law comprises of the dispute between individual parties such as a celebrity taking legal action against a newspaper for libel.  

On the other hand, Public law consists of rules wherein, one party is the state who participates in the legal relationship from a strong position, through which it is implementing its power. Public law also indicates the principles that serve as a source for the structure of a state and the relationships between the state and its citizens (School of English and American Studies, 2018). Public law includes constitutional law, administrative law, financial law, criminal, procedural as well as international law. The public law is considered as a set of lawful values which administers the way through which public authorities can utilize their authorities, which includes the government as well. The public authorities have to implement the powers as sanctioned to them by the law and the public law is aimed to ensure that powers are not misused. The major operational form in public law is the use for judicial review, which enables the entities or organizations to test the decisions or the actions of public authorities (Eesti, 2018).

The concept of Alternative Dispute Resolution (ADR) mechanism provides an alternative to the traditional methods of resolving dispute. ADR assist in resolving various types of disputes which include civil, family, commercial, and industrial and such other methods, wherein, people not being able to initiate any kind of negotiation and to come to the settlement terms. In general, ADR makes use of third party who is neutral and assists the parties to communicate, discuss their differences and resolve the conflict. It is considered as a method that enables the individuals and groups to maintain co-operation, social order, and provide the opportunity to reduce aggression (LegalMatch, 2018).

Advantages of ADR:

• The resolution of conflicts through courts are exceedingly expensive even those which lasts for a short period of time and can cause serious financial loss, particularly when the issue is considered as complex. However, ADR-based mediation of a dispute, costs significantly less as compared to the mattes getting resolved through court. Undergoing litigation process saves a lot of money and is a highly cost-effective method (Legal Dictionary, 2018).
• In a case of litigation, lot of time gets consumed in the court and which reduces the working hours resulting in backlog of work. Furthermore, litigation of any kind is considered as a stressful experience and would be a wise decision to avoid it if possible. ADR is a less time consuming process as people can resolve their disputes within a short period of time as compared to the courts (In Brief, 2018).
• It provides an opportunity to tell exact interpretation of the events such as in conciliation, which is considered as a common method of ADR, the neutral mediator asks questions to both the parties in order to get as much information as possible (Consumer Protection Association, 2018).
• The courts resolve disputes following legal legislation, however, ADR is considered as a flexible as well as responsive institution towards the needs of the individuals those involved in the matter. Thus, the outcome is more expected to be meditative of the dispute (LegalMatch, 2018). The people involved in dispute can resolve their disputes through the ADR, which is free from technicalities of the courts and utilizes informal ways to resolve the dispute.
• Taking into consideration, the needs of both the parties, the outcome is more expected to fulfil the requirements of both the parties involved, which help in preserving existing customer relationships and can prove to be beneficial to a certain extent, if the relationship continues. Thus, it prevents further conflict and maintains good relationship between both the parties (Civil Aviation Authority, 2015).
• ADR resolves the conflict in closed doors not inside the courtroom in front of public and can be dealt in a confidential manner and preserves the best interests of the parties.

Therefore, the usefulness of ADR reflects that it should replace the courts as the venue for the purpose of resolution of disputes. The vast majority of cases that can be resolved by negotiation should be taken into consideration by the ADR (UK Government, 2015). However, it occurs in the later phase in the case proceedings and occasionally even in the course of trial, after highly significant costs have already been spent. Mediation is ADR procedures that are considered as basically refined method of negotiation. It refers to the fact that if the case can easily be settled through negotiation, it can easily be resolved through mediation and perhaps more effectively as well as at an initial phase. It means that the mere fact that a case is multifaceted and includes multiple parties or matters, it does not mean that it could not be resolved by the mediation (Citizens Advice, 2015). Usually, the price of lawsuit in such circumstances indicates that it can positively be resolved through ADR. It has been experienced in the UK and in various countries such as in the USA, Australia and various other places that, ADR resolves the issues having high value and complex disputes in an effective manner (Hogan Lovells, 2017). Generally, the issue is not whether the dispute can easily be resolved through ADR, instead, when efforts to resolve in such a manner should be completed. For example, as in the Court of Appeal recognized in Halsey, there are a rare groups of cases which are fundamentally more suitable of getting decided through trial procedures. There is one such group wherein, the issue of legal standard gets involved and it makes it necessary for binding and public decisions. Another is where there are accusations of deception or various types of disgraceful conduct. In certain circumstances, it is supposed that the cases which involve emergency injunctive relief, they are considered to be as not so suitable for ADR. However, there is not any intention why ADR should not be implemented in such cases when the injunction exists in such cases. In some situations, it happens that a party is defending due to strategic reasons and it does not require to be settled down. In such circumstances, the parties do not agree to the ADR but even in cases, the problem may be of effectiveness and the party in such a circumstances would seldom prefer to go for trial. In fact, the party that exhibits purpose not to try ADR, should be equipped to defend its point and might well be prepared to be penalized in terms of costs if achieve success at trial.  

Alternative Dispute Resolution

When there is a dispute between more than two parties, the parties can resolve it in various manners and the appropriate method is to take the matter to the court, but occasionally, differences can also be resolved in a quicker, inexpensive and less traumatic manner through ADR. Various ways included in the process of ADR are;

• Negotiation – The word ‘negotiation’ means ‘negotium’ in Latin refers to informal approach between the parties and the legal representatives. It is considered as the speediest and inexpensive form of resolving the issue. The people involved in the dispute enter straight as well as confidentially into contact to deal with the matter. There is no control of third party over the decision of the suffered party to the conflict.
• Mediation – The mediation occurs on the basis of voluntariness, confidentialities and discussion. It includes neutral mediator who remains unrelated to the dispute and help the parties to reach to the situation of settlement. The mediator is not permitted to give their individual outlook regarding the dispute, but just acts as a channel between the parties to the dispute. Their main duties are to help the parties in defining their positions, to clarify the petitions and arranging the appointments between the parties till the resolution of the dispute. It is the quality of a good mediator that they are trained effectively to provide assistance to the parties in search of satisfactory solutions.
• Conciliation – The conciliation means to assemble, unite or to win over. The process of conciliation is similar to mediation but also quite different because they are permitted to propose answers to the case of the parties. The values of conciliation process include voluntariness, impartiality, confidentiality and good faith.
• Arbitration – When the parties decide to prefer the process of arbitration as per the Arbitration ACT 1996, it is essential for them to stand up to the arbitrator, panel of arbitrators or to the arbitral institute. The arbitrator is chosen by the parties or if they do not attain settlement in appointing an arbitrator, the court is required to choose them (Findlaw, 2018).

In this manner, the ADR is considered to be as most suitable process and if possible, it should be preferred by the people involved in any kind of disputes.

Facts of Case

Paul is constructing his new holiday home on sea front site, for which, he approached local building supplies firm named ‘Brick-for-all’ to purchase bricks. He mentioned that he requires bricks for external use only but, did not mention about the construction site. The manager wished to inform him about the limitations of the type of brick being purchased by Paul, but she hesitated because Paul appeared to be in hurry. He signed the contract and bricks were delivered and he used them for the construction of his house. Later on, he found that the bricks were made of compressed paper due to which, it reacted to sea salt and became porous and the damp entered the houses. Due to damage, the houses were not suitable for human habitation and Paul was left with no option but to demolish them.

Consumer Rights Act 2015           

Part 1 of the Consumer Rights Act 2015 (CRA) provides core consumer rights which comprise;

• The right to get for what they pay such as the information about the key features of the goods and it also include the statements that are made in advertising in order to form the part of the contract.
• The right to have faulty product free of charge or refund or replacement.
• The right that the digital content be suitable for the purpose.
• The right that dealers can perform services with sensible care and abilities and within given time because they are grateful to pay rational price so, they have the right to ask for proper services and if it becomes impossible within a reasonable time period, they have the right to get price reduction.

Regarding the sale of goods, Part 1 of the CRA states the excellent standards for goods explicitly i.e. goods must be of acceptable quality, suitable for purpose, match the explanation, and must match a model examined except to the degree that any alterations are taken to the consideration of the consumer before they enter into the contract.

As mentioned in the Act, bricks supplied to Paul were not suitable for the purpose for which he purchased. Even if he mentioned that he required bricks for external use, it was the responsibility of the supplier to explain him about the material used in bricks and that they were not ordinary bricks made of clay but were made of compressed paper. Secondly, it did not also match the description as well because it seemed to him that they were ordinary bricks. As the goods supplied to him, did not follow the contract and the terms inferred by the CRA 2015, he should be provided with statutory remedies by the supplier.

The CRA provides statutory remedies as follows;

• One month short- term right to reject defective goods and to get a full refund. However, if the consumer follows their rights for defective goods to get them revamped or replaced with a final right to discard the goods in case they remain faulty.
• The consumer is required to accept repair only once before final rejection and demanding price reduction or rejection.
• The CRA establishes new limits and conditions for the traders to make inference for use if consumer exercises their right of final rejection of goods within six months (LegCo, 2015).

Paul should be provided with statutory remedies by the supplier. He should get his money refunded, as the goods were not at all suitable for the purpose he purchased them. Furthermore, he should be provided with the bricks suitable for his purpose by the supplier as he had lost a lot of money due to damage in the houses because of damp that entered the houses.

Under the CRA 2015, the consumer services must be delivered with sensible maintenance and ability. The spoken or voluntary statement provided by the trader regarding the service might be a binding contractual term. It is the situation where the declaration is considered by the customer when they choose to enter into the contract or take any decision related to the service after signing the contract (UK Govenrment, 2015). It is considered as express provision that the price being paid for the service needs to be reasonable and the service is required to be performed within reasonable time period. It means that the service is considered to be as non-compliant if it is not executed with sensible care and ability and is not executed in a manner as informed about the service. In certain specific circumstances, the goods are not considered to be in compliance with the contract when it has not been correctly installed by the trader. When the services being provided by the trader are not in line with the contract, CRA provides them with the statutory remedies to the consumers which include right to require repeat performance or right to reduce the price of goods (Duncombe, 2015). The consumers are provided with the right by CRA to claim reduction in price of goods when the services are not performed as per the evidences provided by the trader. Furthermore, consumers can also claim price reduction when the service has not been done within the sensible time and it is difficult to re-perform the service. The consumers can claim price reduction also when they have already requested for a repeat performance but the service has not been re-performed within a reasonable time or without substantial problem to the consumers. It has been specifically mentioned in the CRA that the presence of the above mentioned statutory remedies to the customers stop them from looking for other laws for remedial purpose. For example, damages or specific performance provides that they need not to recuperate two times for the similar loss.

Advantages of ADR

Taking into consideration, all these points mentioned in CRA 2015, it can be said that Paul had not received the goods of the quality he desired even after paying the amount demanded. Furthermore, the supplier had not informed him about the material used in the bricks, which he thought would be the common type of bricks and used them for the construction purpose. Paul should be compensated for whatever loss incurred by him.

On the other hand, the Contract Law of UK favours the supplier because both the parties entered into a valid contract. There is a requirement of three elements for constructing a valid contract which are;

• Agreement
• Intention to create legal relationship
• Consideration

The contract comes into existence as soon as both the parties enter into valid contract by acceptance of offer and consideration passed on from one party to another (In Brief, 2018). In the case of conditional contract only, the contract becomes enforceable only when the conditions are fulfilled or otherwise agreed upon.

Paul had entered into contract with the supplier without taking any information about the goods he was purchasing and without going through the content of contract. He signed the contract in hurry without any further enquiries. So, he is equally liable for the loss incurred to him (Allen & Overy, 2016). The supplier can take the benefit of Contract law and deny paying compensation to Paul on this basis as it was the responsibility of Paul to investigate about the goods he was purchasing and not only the supplier to disclose all the details. He entered into contract which itself is a proof that he was aware about all the terms and conditions of the contract and about the goods being purchased by him.

However, Paul can take the benefit of voidable contract provisions in Contract Law, which states that such contracts can be legally terminated. The contract entered into by both the parties can be considered as voidable when it includes fraud or undue influence or failure to disclose material facts.

Paul can prove the contract as voidable in a manner that he was not informed about the quality or material of bricks and he purchased them considering them to be ordinary bricks. The supplier did not inform about non-suitability of the bricks for construction purpose at some specific sites even when he was going to enter into the contract. So, the manager failed to disclose the material fact about the goods purchased by Paul and it makes the contract voidable.

Conclusion

Considering the CRA 2015 and Contract Law of UK, it can be concluded that Paul should be compensated for whatever loss suffered by him due to the non-suitability of the goods sold to him by the supplier. Furthermore, the contract should also be considered as voidable because he was not informed about the factual aspect of the goods because of which, he suffered a loss. Therefore, Paul should get compensated by the supplier.  

References

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