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The fabric of English civil justice

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Jeremy Marshall

on 13 February 2014

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Transcript of The fabric of English civil justice

Mostly civil, but not all; mostly principles, but some detail
The English Trial Process
The "Trial"
All is not well...
The "Overriding Objective"
Case management
What is the nature of the English trial system?

What are the overriding principles at play
How do they affect specific rules/processes?

Civil Procedure Post 1997
Let's look at a few procedures and rules....
Some general principles
Sir Jack Jacob "The Fabric of English Civil Justice" Hamlyn Lecture
You know what I mean by "trial"?
What are the characteristics which
"define" this process? Why the funky cartoon?
Woolf Reports (interim and final)
- cost and delay a major issue
"These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly"
Bye-bye to "party control" and "party progress"?
Snapshots:
1987 - 1997/8
2013

Witnesses
There is no "property" in a witness - no side can "own" a witness and no witness can be compelled to talk before being called to the witness box
The adversary system
Principle of orality
Principle of publicity
Trial/Pre-trial split
System of costs
Adversary system
What does this mean?
Orality
English trials are spoken events
Civil Procedure Act 1997
- paves the way for reform
Civil Procedure Rules 1998
- a new "procedural code"
"Average costs amongst the lowest value claims consistently represent more than 100% of the value of the claim...cases between £12 500 and £25 000 average costs range from 40% to 95% of the claim value...
...the present system provides higher benefits to lawyers than to their clients"
There will be new rules for the Civil Division of the CA, the High Court, and the county courts. A rule committee makes and changes the rules.
81 Parts with rules in each
Practice directions attached to many rules
Diminishing schedules 1 and 2
The rule against bias
The right to a fair hearing
Fair and public hearing
Within a reasonable time by an
Independent and impartial tribunal established by law
Other generally binding procedural concepts
Natural Justice
European Convention on Human Rights article 6
But the definition of justice specifically talks about cost and proportionality
- THIS IS NEW TO ENGLISH CIVIL PROCEDURE
The Overriding Objective affects how the court interprets all other rules and how it exercises any powers it has
It also places direct obligations on the parties
So can the courts level the playing field?
The "equality of arms" philosophy
Generally speaking, that in litigation a just outcome is more likely if each side has equal opportunities and neither has any advantage due to relative strength other than the strengths of their legal arrangements
Predates the CPR but considered the "small claims court" which became a part of the CPR - treated as authoritative on the same question under the CPR
Chilton v Saga Holidays Plc [1986]
Poor claimant = litigant in person
Rich defendant = well represented
Judge's decision to restrict cross examination of claimant by defendant's lawyers went completely against our adversary trial process and not permitted
Case management
How witnesses are used
Who can be a "party"
Disclosure
Public or "open" justice
The principle of orality
Current system of costs
"The court must further the overriding objective by actively managing cases" CPR r.1.4

encouraging the parties to co-operate with each other
deciding the order in which issues are to be resolved
fixing timetables or otherwise controlling the progress of the case
This has fundamentally altered the role of the judge compared to the parties - it has weakened but not destroyed the adversary nature of English trials
Track Allocation
>> Small Claims Track
>> Fast track
>> Multi Track
Not the same as "High Court or Crown Court?"
Track principally based on value of the case
Publicity
The English trial is a public trial
Pre-trial - Trial split
A strict separation between preparation and the trial event
Costs
Costs "follow the event"
How?
By giving "directions"
Different "standard" directions in each of the three tracks, varying in complexity and resulting expense e.g:
PD27 The Small Claims Track
- only 5 points
- includes "No party may rely on any report from an expert unless express permission has been granted by the court beforehand"
DIRECTIONS in this track try to make the procedure simple and less expensive in line with the principle of proportionality
- Up to £5000
- £5k to 25k
- Over £25k
Practice Direction 7A
"Proceedings (whether for damages or for a specified sum) may not be started in the High Court unless the value of the claim is more than £25,000."
The case management conference
Access this YouTube clip:
www.youtube.com/watch?v=w-9BPP9o-c4&feature=player_embedded
Expert witnesses
The problem - the "battle of the experts". Parties could and still can pay for expert witness "services".
The solution? >>>>
Restrict the use of expert evidence to what is reasonably required
Give experts a primary duty to the court, not to the person paying them
Make experts give written reports and let each side see these in advance of trial and ask questions of the other side's expert in advance of trial
CPR Part 35
Interference with witnesses or potential witnesses
Improper behavior by witnesses e.g. refusal to answer questions in the witness box
The law of contempt of court punishes :
This topic is covered in your PBL research and podcast
What do the actual current rules do for Sir Jack Jacob's fabric of English civil justice?
Parties
Senior Courts Act 1982 s. 49
CPR r. 3.11
+
Multiple claimants and defendants can be "joined" in the same proceedings to allow the court to seek a final resolution of the legal issues without having multiple trials
But the interesting issues are...
The rules on vexatious litigants
The rules on "interveners"
Disclosure
Formerly "discovery"
Open Justice
The general principle:
CPR Part 39 "Miscellaneous"
Principle of orality
Mostly still intact following the CPR except:
Costs - any less "baneful" now?
CPR r. 44.3
Cost has discretion, the usual rule is that costs follow the event, but the court can alter the usual rule depending on "the conduct of all the parties".
CPR Part 36
Part 36 offers to settle, made by either side, with potential costs consequences for the other side if they refuse.
This lays the ground for "adverse costs orders" being used to punish parties. We follow up on this when discussing formality, contempt of court, and punishment in your podcast
"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 reverse in the adversary system from the way it operates in the inquisitorial system" (JJ)
Party control
The parties determine what happens
Party progress
The parties determine how quickly the trial moves forward
In summary, each side prepares its team for the contest. One side in turn goes into bat…and faces the bowling of the other side…then the other side takes its turn at the wicket..Throughout, an independent third party umpire..watches, listens, and enforces the rules, and at the end of the game gives his decision as to the winner”

Lightman, “The civil justice system and legal profession” (2003) 22 CJQ 235
Sporting and war analogies often used to describe adversarial process as a no-holds-barred contest
It is a deeply ingrained habit of the English legal process. It affords the medium for the litigant in person to take part in proceedings and to present his own case. It runs parallel with the principle of publicity, and both orality and publicity are crucial to the proper functioning of the adversary system.
Paperwork was always part of the trial process
Statements of case
Some paper procedures in court of Equity
Principle of "immediacy"
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.
>>>Necessarily tied in with the idea of trial by jury
>>>Desirable to ensure that the courts behave properly
Jeremy Bentham: “The grand security of securities is publicity – exposure – the completest exposure of the whole system of procedure – whatever is done by anybody, being done before the eyes of the universal public”
>>>Protected as a legal principle of common law
It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done
Per Lord Hewart in R v Sussex Justices ex. P McCarthy [1924] 1 KB
One examples why publicity was seen as crucial
The Star Chamber
- Existed until the late 1600's as a court of law with no witnesses, secret hearings.
Lack of transparency and therefore accountability made this a powerful tool of the monarchy. Its legacy remains in the use of the pejorative term "star chamber" for any secret trial process.
You have already experienced a range of "pre-trial" issues
Investigating facts
Researching relevant law
Assessing remedies/damages
Setting out claim/defence
Pre-trial procedures are necessary to allow:
...a continuous uninterrupted, concentrated oral hearing before the court
In those [inquisitorial] systems all the procedural processes that are taken before the final hearing or disposal of the civil suit form part of the “trial” itself. They are not preliminary, provisional or interlocutory in character or purpose, as they are in England, but they constitute integral elements of the continuing process of trial.
Sir Jack Jacob: "The most baneful feature of English civil justice is the incidence of costs"
Claimant - £2500 costs
Lawyers
Expert witnesses
Court fees
Defendant - £3500 costs
Lawyers
Expert witnesses
Court fees
Replying to "discovery" requests
Whoever loses pays EVERYTHING
Costs can easily EXCEED THE VALUE of the claim
Sir Jack Jacob: It greatly magnifies the factor of costs, which itself becomes a stake in the litigation, over and above the merits of the case, since the loser has to pay in the end, there is an added incentive to the natural instinct to win. It makes winning more victorious and losing more disastrous.
By its very nature it is intended cooperative rather than adversarial, but it can still be used as a tactical tool
CPR part 31 covers
Fast Track
Multi Track
Small claims does not even have the usual disclosure rules - money saving
Disclosure is about listing what documents exist
Inspection covers the right of the other side to see them
Covers "anything in which information of any description is recorded". A "Cards on the table" approach.
Standard disclosure covers:
Documents which:
>>> you rely on
>>> adversely affect your case
>>> adversely affect another party's case
>>> support another party's case
CPR 35.5
CPR 27.10
Clarification of the status of expert testimony gives preference to written reports
The court may dispense with a hearing in the small claims track
Skeleton arguments are provided in some procedures in the higher courts but these do not replace verbal advocacy
There is no exception to protect morals despite this being permitted under article 6 ECHR

(1) The general rule is that a hearing is to be in public.
(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.
(3) A hearing, or any part of it, may be in private if –
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or
(g) the court considers this to be necessary, in the interests of justice.
(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.
Public access to courts
Where physical access is permitted and newspaper press are unrestricted, why cannot television media cover court cases in court?
ALL press are covered by contempt of court where they break reporting orders or otherwise interfere with the due administration of justice in a trial.
s. 41 Criminal Justice Act 1925
No person shall...take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal
Other relevant legislation
Contempt of Court Act 1981
It is a contempt of court...to use in court, or bring into court for use, any tape recorder or other instrument for recording sound, except with the leave of the court
http://www.guardian.co.uk/uk/2011/nov/02/man-arrested-mobile-phone-pictures-court
Both cover "publication" as well
Can we separate the basic act/technology from the aims and outcome and permit cameras etc whilst protecting witnesses? Do we need to protect the "dignity" of the court process?
Department for Constitutional Affairs, Broadcasting Courts, Response to Consultation (2005)
Claimant - £2500 costs
Defendant - £3500 costs
Sues for £100
Makes P36 offer for £80
Declines offer and wins case receiving damages of £70
Takes home £70 in damages. Pays £6000 in costs
Claimant - £2500 costs
Defendant - £3500 costs
Sues for £100
Declines offer
P36 offers to settle for £90
Wins and is awarded £95 in damages
Takes home £95 in damages and has £2500 in costs paid by D regardless of Part 36 (the standard rules) so the court will "enhance" this by up to 10% under the brand new offers to Settle in Civil Proceedings order 2013
PI claims in the High Court routinely took up to 5 years to judgment
"Justice delayed is justice denied"
"Vexatious" litigants
You have a right to a fair trial?
Does this mean a right to have every complaint heard by a court?
Should anybody be prevented from even starting a claim?
Restriction of vexatious legal proceedings.
Senior (formerly Superior) Courts Act 1981 s. 42
CPR 3.11
Power of the court to make civil restraint orders
Grepe v Loam orders
1887 case establishing inherent jurisdiction power to order that X cannot start a claim
Why does this still exist if legislation now covers the same topic?
Limited
Extended
General
Civil
Criminal
All
Amicie and interveners
Amicus curiae
Fiend to the court - neutral - role often filled by the Attorney General
Hannett, “Third party Intervention: in the public interest?” (2003) Public Law
Party interveners
Individuals/organizations with legal interest in the outcome of a case can intervene
Public interest intervention
No specific legal interest; interest group with a broader policy or moral agenda e.g.:
R v Bow Street metropolitan Stipendiary Magistrates ex. P Pinochet (No 2)
Is private litigation becoming public legislation?
Is the adversarial trial loading the dice against one of the parties?
More about publicity as reinforcing confidence in the law than as preventing abuse of power
Full transcript