#3651 - Civil Procedure Introduction - Civil Procedure

Civil Procedure: Introductory matters

Malleson and Moules: The Legal System

Introduction

Trends and themes

Increase in size and growth in economic and political importance of the legal system. Argues that the impact of this expansion includes an acceleration of the pace and amount of reform to the legal system and an intensification of the debate about its role and function.

Private enterprise driven and responsive to market forces, OR a public service requiring state subsidies and public participation.

The expansion of the legal system

Number of solicitors and barristers has expanded from fewer than 30k in 1970 to over 110k in 2009, while the judiciary has experienced a ten-fold increase in numbers over the same period to 3,000 judges.

Political and economic significance of the legal system

2006-7 the turnover of the legal profession reached 23.3bk- doubled since 1997.

The pace of change in the legal system

In the last decade the civil justice has undergone a complete overhaul in the reforms proposed by Lord Woolf with the aim of increasing the speed and fairness of the system and reducing its cost.

Efficiency versus quality of justice

The introduction of new ways to fund the legal system and attempts to encourage competition in the legal profession has led to reforms such as the introduction of the American-style no-win-no-fee conditional fee arrangements; the reduction of cases eligible for legal aid and the abolition of the solicitors’ monopoly on conveyancing; and the barristers’ monopoly on advocacy in the higher courts.

Does replacing legal aid with conditional fees increase access to justice or reduce it?

Access to justice versus litigation reduction

The legal system can be seen as a pyramid. Although overall it has expanded significantly, only very few cases ever reach the upper echelons of the system. The vast majority of legal problems are dealt with privately, leaving the court system serving the function of a relatively expensive and time-consuming last resort. Most cases that do reach the courts are heard in the lower courts and processed quickly through the system, with a full trial in the higher courts being statistically an unusual outcome for a case and making up only a tiny fraction of the legal system at the top of the pyramid.

The description of the legal system as a pyramid is now more accurate than ever before. The idea that access to justice means the availability of a full court hearing has been widely rejected. Instead, it has been reconceptualised to mean access to advice and assistance which helps promote alternative means of settling disputes so that the court system represents a last resort for the small minority of cases that cannot be resolved in any other way. This change in attitude towards the role of litigation and the anxiety which the prospect of the development of a more litigious society generally promotes reveals an interesting paradox at the heart of the justice system. On the one hand, the RoL is considered a keystone of a democratic society; yet on the hold, the legal system is regarded as a costly, time-consuming, and often destructive way to deal with social or economic problems. This tension runs through the legal system. Access to justice is recognised as a measure of the effectiveness of the legal system, yet the rising caseloads in the court are viewed as an alarm. It seems that we are not sure whether we want more justice or less.

Private versus public justice

Civil justice is expected to be largely self-funded and provided by private practioners.

Since the 1990s, court fees charged for bring a case to court have been set at levels which will cover the full court costs of the case.

This particularly radial change, the effective privatisation of a key feature of the justice process, has come about with little attention outside the legal world and very little public debate.

Lay versus professional justice

Inquisitorial versus adversarial justice

The courts have introduced a more inquisitorial-style control of cases by judges in the civil justice system and a greater pre-trial disclosure of evidence.

Cranston: How Law Works (2006)

Chapter I: Introduction

Ali (2003) – in CoA Clarke LJ held that it would only be in an exceptional case, if ever, that a court would order security for costs if the order would stifle a claim or an appeal. In any event an order should not ordinarily be made until the party concerned could be shown to be regularly flouting proper court procedures or otherwise to be demonstrating a lack of will to litigate as economically and expeditiously as reasonably possible. The weakness of a party’s case would ordinarily be relevant only where it had no real prospect of succeeding.

Clarke referred to “the fundamental importance of access to the Courts”. It was unnecessary to rely on the Article 6 jurisprudence under the ECHR, he held, because cases prior and subsequent to the CPR recognised the fundamental value that individuals are generally entitled to untrammelled access to the courts, subject only to the sanction that they are in peril of an adverse costs order if unsuccessful.

The CPR forbids a court to order security for costs on the ground of an individual C’s inability to pay, unless resident in some specified overseas jurisdictions. It extends that principle to appeals (r25). However, the case management power, r3, confers a wide power to stay cases, or to make case management orders with conditions attached such as the payment of security for costs. Clarke LJ reconciled these different provisions and held that the courts have the jurisdiction to make such orders, but the discretion to do so could not be unlimited in the light of the principles governing access to the courts.

Three features = values, procedures and social context.

VALUES - Access to justice is clearly a fundamental value directly relevant to the working of the law, along with others like equality before the law and the rule of law. Lawyers are guardians of the way their clients carry out transactions, ensuring they comply with the law. Lawyers act as a social group, mediating between state and society.

PROCEDURE – enabling individuals and groups to vindicate their rights and to resolve their disputes in an orderly manner, thereby making manifest the value of the law but also serving larger purposes, such as facilitating social harmony and oiling the wheels of commerce. Procedural change and renewal are as vital as public subsidy in making law work effectively for all sections of society.

CONTEXT- law can be used instrumentally – to give an official stamp to certain outcomes, to settle disputes and for social engineering. Setting, purposes and impact are but three facets of a law’s social context.

Access to justice

Access to justice...is more than access to the courts. Nor need it necessarily involve lawyers. How law can work to further access to justice needs to take both these points to heart.

Friedman – when people talk about “access to justice” they mean different things, but “every discussion assumes a goal called justice, and assumes further that some group or type of person living in a society finds the door closed...”.

European Commission considered the meaning of access to justice within the context of its Green Paper on Access to Justice for Consumers. It saw the problem of access to justice as the gap between the law and the reality of individuals seeking to vindicate rights. – “If the rights recognised by the legal order thus created are infringed through a breach of one of these norms, a procedure (judicial or administrative) must exist in order to render justice...If such a procedure did not exist or was not accessible to the holders of the interest protected by the legal order, there would clearly be a gap between the legislator’s designs and the reality experienced by citizens. The problem summarised here under the rubric access to justice is nothing other than that of this gap between law and reality”.

Access to justice is also beneficial because it affirms people’s faith in the system, and ensures compliance. Access can also act as a brake on powerful interests. The role of access to justice in facilitating economic activity should not be overlooked either.

If access to justice is to be achieved individuals and groups must be aware that their legal rights are affected, know of courses of advice and assistance, and be able expeditiously to access those of an appropriate quality at a price within reach.

Ultimately, access to justice means being able to have one’s case resolved by a body which is impartial, non-corrupt and fair.

Ramsay – questions whether enhancing access to legal procedures rather than, say, improving regulation or establishing a compensation scheme might not be the better way of making certain rights effective e.g. consumer redress.

It is not an issue of high constitutional principle if as a matter of public policy encouragement is given to dispute resolution procedures other than courts. What matters is access to justice and the quality of machinery to achieve it. In practice the working of the law is a plural world and the courts and other dispute resolution machinery operate side by side.

Dezalay – “fitting the forum to the fuss”

Access to justice need not mean full engagement in the formal legal process although it must always be there as a backstop.

Brooker – some forms of ADR like commercial arbitration have become costly and as dependent on lawyers as the courts.

If there is access to the formal legal process, contact can be with a...