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Is the Hong Kong Courts’ Ability to Refer to Foreign Authorities Unrestrained?
Get PDFOnce in a while there is a debate on whether Hong Kong courts should be freely able to refer to foreign authorities, indicating the lack of firm consensus. In light of the need for clarifications, this note affirms the court’s ability to refer to foreign authorities for three main reasons. Constitutionally, this note is the first to raise that Hong Kong courts have a unique ‘constitutional assurance’ of their ability to refer to foreign cases. By comparison, other jurisdictions, like England & Wales and Singapore which do not share the same assurance, have even further restrained their power with Practice Directions. Professionally, the courts will not blindly rely on foreign authorities given the jurisdictional differences. Practically, Hong Kong has a relatively smaller case pool, so the practical insights from the foreign authorities are very useful. Given these three justifications, there should not be any doubt over the courts’ power and practice for such.
Keywords: common law; Singapore; English law; comparative law; case law; precedent; India; judiciary; legal method
Law’s Invisible Women: The Unintended Gendered Consequences of the Covid-19 Lockdown
Get PDFThis article examines the unintended gendered consequences of lockdown on women’s rights, particularly those related to women’s work, health and wellbeing. Situating this assessment within wider feminist legal scholarship, which exposes the gendered nature of law and the tendency to legislate in a way that prioritizes a privileged male legal subject, we argue that legislation and subsequent decisions fail to centre women’s lived experiences and so deprioritize women’s needs. We ultimately argue that lessons need to be learned regarding how post-pandemic responses are implemented to mitigate the impacts on women and ensure gender is mainstreamed within the law-making process.
Keywords: women; Covid-19; flexible working; care; telemedicine; abortion; gender mainstreaming
United by Cuts: Exploring the Symmetry between How Lawyers and Expert Witnesses Experience Funding Cuts
Get PDFThis article highlights that defence lawyers and expert witnesses appear to have experienced the impact of criminal legal aid funding cuts in similar ways. Despite the very different and specialized nature of their respective work, both sets of professional participants in the criminal process identify that funding cuts create problems around sustainability and quality of service.
While a growing body of literature has well documented, and continues to document, the perilous position that defence lawyers are in as a result of funding cuts, less is known about the effect of funding cuts on the work done by expert witnesses. To that end, we conducted two focus groups with expert witnesses during which we put to them some findings from our study of the impact of legal aid cuts on lawyers conducting appellate and Criminal Cases Review Commission (CCRC) case work. During interviews in the CCRC study, it became apparent that defence lawyers were struggling to instruct expert witnesses, so we wanted to explore that issue more with expert witnesses themselves. In doing so, we discovered a significant overlap in the concerns expressed by both defence lawyers and expert witnesses regarding the ways in which their work was affected by funding cuts.
Keywords: expert witnesses; legal aid; defence lawyers; sustainability; quality; morale
Mandatory Mediation in England and Wales: Much Ado about Nothing?
Get PDFThis article is concerned with the thorny issue of mandatory mediation. In so doing, the piece charts the development of court-linked mediation in England and Wales from the days of the Woolf reforms and examines the growing clamour from judges, policymakers, commentators and, more recently, mediators for a shift from a mere cajoling of parties to mediate to outright compulsion. The article examines recent proposals for the introduction of mandatory mediation in English civil justice and sets out the view that, while mandatory mediation is inevitable and not per se objectionable on legal or policy grounds, care must be taken to ensure that it is implemented in such a way as to balance up different important policy drivers including efficiency, preserving the qualitative goals of mediation and filling the ‘justice gap’ that mediating in the shadow of the court can leave.
Keywords: mediation; mandatory mediation; access to justice; court-based mediation; mediation policy; litigants in person
Professor of Practice: A Note on How to Make the Role Work, and How Practitioners and Academics Can Work Together in a Better Way
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Civil Justice Reform: An Ombudsman Perspective
Get PDFOmbudsman schemes have been viewed with interest for their efficiency, speed, cost and use of technology. As Sir Geoffrey Vos seeks to integrate alternative dispute resolution as part of a civil justice funnel, it is important to recognize that ombudsman schemes fulfil different functions than the courts. This paper suggests that dispute resolution is only one of the functions of a civil justice system. Court efficiency should not be the predominant organizing principle. Recognizing the variety of functions and legitimate interests contained within the civil justice system rather than conceiving a hierarchical structure presided over by courts could offer an outcome-based perspective on reform.
Keywords: ombudsman; dispute resolution; technology; justice systems; prevention
