#3665 - Sir Jack Jacob - Civil Procedure

Sir Jack Jacob – Hamlyn Lectures: The Fabric of English Civil Justice (1987)

1. Fundamental Features

A. Introductory

The system of civil justice is of transcendent importance for the people of this country.

The subject may be said to consist of three parts: the institutional part, the professional part and the procedural part.

Civil justice, especially its procedural part, is generally, or at any rate popularly, regarded as being highly technical, rule-ridden, formalistic, shrouded in mystery and serviced by its own cloistered priests, some of whom perform their ritual capers and speak an unfamiliar language in strange surroundings and in the higher strata dressed in ornamental garb. Thus it is that for most people English civil justice is a remote, incomprehensible, mystifying and in some ways terrifying area of the law.

What is needed above all today is a breath of fresh air to blow through the corridors of civil justice to de-mystify the process, to render it plain, simple and intelligible, to enable not only the experts in other disciplines but also the man in the High Street to understand and appreciate its operation and in this way to bring justice closer to the common people.

Ten markers, each of which may be regarded as a primary principle of the system of English civil justice and which taken together present the basic form and shape of its fabric and the essential methods of its operation.

A. Fundamental Features

1. The Adversary System

In both the adversary and the inquisitorial systems, there is a division of functions between the court on the one hand and the parties on the other. The division of functions, however, is the very reserve in the adversary system from the way in which it operates in the inquisitorial system. The fundamental divergence between the two systems is that under the English adversary system the court plays an inactive, passive, non-interventionist part whereas under the civil law inquisitorial system, the court plays an active, authorative, interventionist role; and, corresponding, under the adversary system, the parties play a major, dominating, independent role to persuade the court to adjudicate or otherwise resolve the dispute in their favour whereas under the inquisitorial system, they play a minor, tentative, supportive role to enable the court to perform its function to inquire into and determine the dispute.

Under the adversary system, the basic assumptions are that civil disputes are a matter of private concern of the parties involved and may even be regarded as their private property, though their determination by the courts may have wider, more far-reaching, even public repercussions, and that the parties are themselves the best judges of how to pursue and serve their own interests in the conduct and control of their respective cases, free from the directions of or intervention by the court.

On the other hand, under the inquisitorial system, the basic assumptions are that civil procedure is a branch of public law so that a right of action is seek as a public law right over and above the private substantive right of the party asserting it, and that once the jurisdiction of the court is invoked in relation to a private dispute, there arises an immediate public interest, and the court then comes under a state duty forthwith to take that dispute under its control, to charter its future content and conduct, to search for the underlying truth, to bring the dispute to a conclusion by conciliation if possible or otherwise by adjudication.

Pollock and Maitland – “The judges sit in Court, not in order that they may discover the truth, but in order that they may answer the question “How’s that?’. The English judge will, if he can, play the umpire rather than the inquisitor.”

= the inactive, passive and non-interventionist role of the court in English civil justice.

The court does not itself examine, still less cross-examine, the parties or their witnesses, for to do so, as Lord Greene pointed out, the judge would be descending “into the arena and is liable to have his vision clouded by the dust of conflict”, or as Lord Denning expressed it, he would “drop the mantle of a Judge and assume the role of the advocate.”

Lord Denning – “In litigation as in war. If one side makes a mistake, the other can take advantage of it. No holds are barred.”

By exalting the role of the parties and their lawyers, the English adversary system has the effect of setting the parties against each other as opponents or antagonists, or even as foes or enemies, who must be vanquished in the forensic combat. This reflects and responds to English cultural values, and conforms closely with the English character of independence and fair play.

Nevertheless, the English adversary system has many inherent failings which are manifested in practice more often than is generally realised. Since it is the lawyers who choose when and what procedural steps should be taken or resisted, which they think would best serve their respective interests, it is a hit and miss system, sometimes producing the right result and sometimes not. The adversary system inevitably creates avoidable delays and increases both the labour and the costs. It introduces an element of sportsmanship or gamesmanship into the conduct of civil proceedings, and it develops the propensity on the part of the lawyers to indulge in procedural technical manoeuvres.

For the proper functioning of the adversary system, a basic assumption is that the opposite parties command equal resources and can engage lawyers having equal skill, expertise and competence, but in practice this assumption is not fulfilled in a much larger volume and variety of cases than is generally imagined.

The true casualties of the adversary system are the litigants themselves, who are frustrated in their search for justice, and the notion that a litigant who is defeated by the negligence of his own lawyer will seek redress against him by going to another lawyer is more fanciful than real. In the interplay between the court and the parties and their lawyers, the adversary system envelops the machinery of civil justice with a kind of mystique, even mysticism, which alienates people and inhibits them from resorting to the courts for the resolution or determination of their disputes.

It is clearly necessary that urgent steps be taken to improve its machinery.

The obvious solution which springs to mind, that the English adversary system should be replaced by the Continental inquisitorial system, is wholly misconceived both in principle and practice. As a matter of principle, the proposal to reverse the roles of the court and the parties does not take into account some imponderable intangibles, such as the cultural texture of society, the habits and practices of the legal profession, the needs, values and aspirations of the people, their inarticulated concept of how civil justice should be administered, especially the overriding social need for public justice, so that justice can be seen to be done. As a matter of practice, such a proposal does not take into account the overwhelming difficulties which would be experienced by the practioners and the judiciary if they were required to change their methods, practices, and habits to conform with the inquisitorial system. Moreover, such a proposal would be impracticable since the fundamental difference between the common law system and the continental system in the administration of civil justice lies much deeper, for it lies in the way in which the judiciary is chosen, appointed and promoted. In the continental system of law, the judiciary at all levels is largely comprised of career judges.

On the other hand, in remodelling and refashioning the adversary system, I suggest it would be useful to look for guidance to the principle underlying the inquisitorial system, namely that once the jurisdiction of the court has been invoked, the court should become invested with the public duty and interest to ensure the proper conduct, content and progress of the proceedings. Such increased power of the court, to be more active and responsible, would also help to promote equality in procedure, especially where one party is not legally or even competently represented. The active role of the court would enable it to monitor the progress of the proceedings to control their future conduct, to formulate the real issues or questions between the parties, to determine that there has been full disclosure of documents between them, to ensure the exchange of experts’ reports and if and when this power is introduced the exchange of the statements of the witnesses of the parties, to increase the powers of the court to act of its own motion as, e,g, to appoint a court expert and to enable the trial court to call a witness not called by the parties. Above all, the court should be under a duty at all stages to endeavour by conciliation to promote the settlement or compromise of the proceedings.

2. Principle of Orality

The advantage of orality is that it fosters the principle of immediacy and together orality and immediacy have the effect of enabling the court to conduct the kind of direct, immediate and dialectical investigation into the relevant facts and the applicable law and by this process of cross-fertilisation, they promote the ascertainment of the truth and the production of the correct decision.

The disadvantage of orality is its inevitable tendency to prolong the hearings and trials and thus to add considerably to the increasing delays and costs.

3. Principle of...