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

9
9

and known procedures.

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

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

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.

2
3

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
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 nonattorneys 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.
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

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
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

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.

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.

If they select it the decisions of it

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

5 Ibid
6 S. C. Bennett, Arbitration: Essential Concepts (AML Publishing, New York, 2002) 4
7 Arbitration (ACAS, 2013) available from: <http://www.acas.org.uk/index.aspx?
articleid=1711> accessed 17 December 2013
8 S. C. Bennett, Arbitration: Essential Concepts (AML Publishing, New York, 2002) 4
9 Ibid

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.
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

10 Ibid, s 23
11 Ibid, s 24

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 Romeos 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.