My last pre-retirement thoughts on Civil Procedure

At the end of next month I will be celebrating the tenth anniversary of my voluntary (and never-regretted!) retirement from the Bench at the age of 70.One of the last things I wrote before I retired was a Foreword to the Second Edition of Zuckerman on Civil Procedure.  I attach great importance to the existence of a productive cross-channel of ideas between academic lawyers and the judges who specialise in their field.  One of the weaknesses of the English academic scene always  used to be the absence of a proper appreciation that civil procedure should be a demanding and stimulating field of academic interest in its own right.

Some of the issues I have touched on in this Foreword are covered elsewhere on this blogsite.  Others, I think, are new to it.  But nearly all of them address topics which I believe are still relevant and important today, and they are the product of 18 years of practical experience at the judicial coalface.

I therefore make no apology for repeating them now.

 

July 2006

Civil Procedure

Foreword to the second edition of “Zuckerman on Civil Procedure” (Sweet & Maxwell, 2006)

I was thrilled when I heard that Adrian Zuckerman’s valuable book was running to a second edition only three years after it first saw the light of day.  I was honoured when in the closing moments of my full-time judicial career he again asked me to contribute a Foreword.

Zuckerman on Civil Procedure is already cited in the House of Lords and the Court of Appeal as an authoritative fountain of wisdom.  It is good that it will not suffer the fate of other legal text-books in achieving premature obsolescence in what is still a fast-moving field. Although the last three years have seen a slow-down in the number of mainstream CPR judgments, there is still plenty of work to do on the important fringes.  It is excellent news that Adrian Zuckerman has been willing to update his commentary on the strengths and weaknesses of our evolving civil justice system.  I have read the new book from beginning to end. Like its predecessor, it is a work of careful scholarship, written by one who has vast experience in this highly specialist field.

There are six themes I would like to pick out for special mention.  The first is what the author calls “the high and unpredictable cost of litigation”.  I shared a platform last autumn with a representative corporate litigant who said that what his finance director asked for, above all, was certainty.  If a well-informed guess-estimate was that the litigation would cost, say a quarter of a million pounds (or twice as much if it turned out badly), then an appropriate reserve could be made, as with everything else the company set out to do.  What was unacceptable was the vagueness of the estimates that his solicitors were giving, and the way they were all too often doubled, trebled or quadrupled for no apparently good reason.  Something, he said, needed to be done about this.

In the week before I wrote this Foreword, the Governor of the Bank of England made a complaint along similar lines.  The bank had just been paid £78 million for the costs it had expended in resisting the claims made by the liquidators of BCCI, but the litigation process had taken 13 years and consumed an immense amount of senior management time. Surely, he said, we could arrange our civil justice system better than that.

At the other end of the spectrum we are seeing costs that would have been unimaginable ten years ago. In Rogers v Merthyr Tydfil BC the claimant’s solicitor presented a bill for £18,000 for successfully pursuing a child’s fast track personal injury claim to a one-day trial on liability (damages being agreed at £3,000).   A 100% success fee and an “after the event” insurance premium of £5,000 helped to swell that bill.  When legal aid was withdrawn for litigation like this, did our rulers anticipate that financial burdens on this scale would be shifted to the liability insurance industry?

The Civil Justice Council is making a brave attempt to address some of these problems. Some of them are a legacy of the worrying 3-2 split decision of the House of Lords in the Bank of England litigation, which the lower courts will have to continue to apply (as my division of the Court of Appeal did in the Equitable v Ernst & Young case) until the rule-makers apply remedial surgery to CPR Part 24.  Some, as Adrian Zuckerman points out in his chapter on Costs, are the result of the Conditional Fee Agreement regime being extended to fields of legal practice for which it was never designed. Some are a legacy of transatlantic approaches to commercial litigation, where claims are pursued aggressively in the hope of bludgeoning the adversary into surrender long before the trial begins.

By necessity this book cannot provide definitive answers, but it does illuminate the problems in a clear and well-informed way.

My second theme arises from the author’s belief that the civil justice system is supported by the tax-payer. It is not; or, rather, according to the policies adopted by successive Governments since 1992, it should not be – except when fee exemptions or remissions are available for the indigent, or when the excess of expenditure over fee income at the end of every year is met from other sources because the “full cost recovery” policy on which the Treasury insists is and always has been a chimera.  Nobody knows the extent to which people are deterred from seeking justice by the size of court fees, but HM Courts Service has adopted in its recently published Business Strategy the aim of making the books balance by 2008, and access to civil justice is bound to be the loser as the fees go up and up.  In a passage concerned with court resources the author says that “all that litigants are entitled to expect is a reasonable allocation of resources needed to achieve protection and enforcement of their rights”.  They are not receiving this at present.  I know of no political intent, or even any political desire, that this deficiency should be put right in future.

My third theme relates to the increasing role that modern technology is playing, and must continue to play, in resolving some of the formidable problems that confront our civil courts.  It is a welcome feature of this new edition that the author has now described in the text many of the initiatives that are now taking place.  The fact that the massive £160 million court modernisation programme was carried through smoothly to time and below budget attracted no public comment at all in an age when the only news worth printing seems to be bad news.  Most of our civil courts have been equipped in the last three years with a modern IT network as part of that programme.

Sadly, one result of Treasury parsimony was that the original specification had to be down-scaled, and the new networks are not “fit for purpose” when one contemplates the load they will have to bear when modern e-filing and document management systems are introduced.  But money has been found to dig up and replace the obsolete Oracle software that provided the foundations for such back-office systems as we did possess, so that it will be easier to move forward than was possible in a world in which every court system was an underdeveloped island on its own.

The Money-Claims Online system, which deservedly won international plaudits, is now growing in popularity and general usefulness as a means of diverting staff resources away from debt-collection actions, many of which proceed immediately to a default judgment. The Possession Claims Online system, with additional attractive features, is due to follow very soon.  A project aimed at finding a private sector partner who will introduce the e-filing systems and document management systems that are commonplace in similar jurisdictions abroad is also gathering pace.

The current Commercial Court IT Project will take the lead in delivering an integrated case management system to an English court.  It will produce an e-file, an e-diary and e-listing. Due to monetary constraints the scope of the first phase of the project does not extend to the filing of documents by the parties straight into a court e-file.  Nor does it include any provision for enabling them to commence proceedings on-line.  In its recent annual report the court has stated that both these aspects remain clear and urgent aims for the future.

The Civil Division of the Court of Appeal, on the other hand, possesses in its RECAP system far the finest of the previous generation of court-based systems.  Earlier this year the court expressed itself willing to accept notices of appeal by e-mail, against a solicitor’s undertaking to pay the court fee.  Although few notices of appeal have yet arrived by this route, this autumn, in partnership with the publishers of this book, it will accept a notice of appeal prepared on Rapidform software which will deliver the information on the form straight into the RECAP system.

By these, and other similar means, the civil justice system is now inching into the future. By another initiative, not mentioned in this book, the Court of Appeal’s website at www.civilappeals.gov.uk has opened up a completely new world in the provision of free on-line information to court users[1].  In addition to providing the practical guidance on forms and procedure and useful contacts for which HM Courts Service is rightly receiving international praise, the site includes access to the leading decisions of the last four years, arranged both alphabetically and by subject matter, with hypertext links to the full transcripts which are on the BAILII website (www.bailii.org), brief biographical notes on all the judges, easy links to the Civil Procedure Rules and the most important of the Practice Directions, and the full text of the Asylum Bench-Book which is prepared by an Office lawyer for the use of the judges.  The site also contains a valuable inter-active guide to the correct route of appeal.  In the near future, two kiosks will be available to visitors to the Court of Appeal Registry to give them easy access to this treasure-store of useful information.

Next, I am sorry that the author is still perplexed by some of the decisions of the Court of Appeal.  In a court of over forty judges it would be impossible to achieve total consistency, and some members of the court are inevitably more familiar with matters of procedural law than others.  Practitioners and academic lawyers have to distinguish between those judgments of the court which are clearly designed to give authoritative guidance and those in which a division of the court is simply concerned to try and find a just solution to a particular factual problem.

Ideally, judgments in the latter category would receive no publicity, and they should certainly not be treated as having any precedential effect.  It has always, however, been the policy of the court to release all its judgments on substantive appeals and not to impose any kind of censorship, so that every judgment that seems to depart from mainstream orthodoxy will inevitably come to the attention of the author’s eagle eye.  So long as little attention is paid to it – as to some of the obiter comments on matters of civil procedure that sometimes surface in the speeches of law lords whose practical experience of procedural complexities predated the introduction of the CPR regime – little harm should be done.

On a fifth point, the author rightly comments that when one considers the extra resources needed for dealing with unrepresented parties in complex cases, one begins to appreciate the reasons behind the obligatory need for legal representation in many continental countries (where, as he says, the cost of litigation is considerably lower than in England). Since the first edition of this book was published the introduction of Bhamjee orders, and their subsequent incorporation into the CPR regime, has enlarged the powers of the court to control the activities of a minority of litigants who are exempt from the obligation to pay court fees and whose litigious ardour not infrequently exceeds the merits of the cause they are advancing.  This autumn extra protection will be available to the judges of the Court of Appeal who will be able to dismiss a totally unmeritorious application for permission to appeal without being obliged to afford the litigant an oral hearing.

In my view, however, even more attention needs to be paid to this problem.  In a full cost recovery regime, where the main body of litigants, and not the taxpayer, are obliged to cover the cost of processing totally worthless litigation, thought might usefully be given to introducing some financial disincentive, however small, along the lines of the £10 fee charged for requests for information under the Freedom of Information Act.  The introduction of an appropriately low fee would not compromise any access to justice principles and might introduce a useful financial discipline that is at present notably lacking in these cases.

Finally, a word about alternative dispute resolution.  Worldwide experience has shown that it is difficult to shift a litigation culture overnight, and many litigation solicitors are still suspicious of the value of mediation.  Worldwide experience, however, is also showing that the ice-packs are starting to melt.  More and more litigants are appreciating the value of a mediated solution.  This may bring them benefits a court could never deliver, and it will also save them the cost, delay and stress that is all too often associated with court process. As lawyers’ fees and court fees inexorably increase, the public will increasingly demand some better way of resolving their disputes.  It has been good to watch the steady increase in alternative solutions and in the quality of the ADR providers.  By the time this book reaches a third edition, I suspect that there will be even more to say on this important topic.

But I must return to where I started. Zuckerman on Civil Procedure is now a firmly established authority in a field which far too few English academic authors have dared to enter. Its author is rightly respected by the senior judiciary and by practitioners and academics alike. I wish the second edition of this book as fair a passage as was accorded to the first.

[1]             This very valuable resource has been watered down in recent years, and the current website does not contain nearly as much useful information for judges and practitioners.

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