Michael Zander QC applauds Hazel Genn's Hamlyn Lectures
All Hamlyn Lectures are equal but some are decidedly more equal than others. The latest in that distinguished series, by Professor Dame Hazel Genn, are in that rare category. Her title, Judging civil justice, is apt. The lectures examine not the individual parts but the system as a whole. They pose important questions as to where we are going. Hazel Genn does not pull her punches. When published, they should be required reading especially for policy makers in government and for the senior judiciary. The lectures, summarised in extracts below, advance and develop a series of challenging propositions.
The civil justice system is a public good
The civil justice system provides the legal architecture for the economy to operate effectively, for agreements to be honoured, and for the power of government to be scrutinised and limited. The civil law maps out the boundaries of social and economic behaviour, while the civil courts resolve disputes when they arise. In this way, the civil courts publicly re-affirm norms and behavioural standards for private citizens, businesses and public bodies. Bargains between strangers are possible because rights and responsibilities are determined by a settled legal framework and are enforceable by the courts if promises are not kept. The courts are not the only vehicle for sending these messages, but they contribute quietly and significantly to social and economic well-being. They play a part in the sense that we live in an orderly society where there are rights and protections, and that these rights and protections can be made good. If the law is the skeleton that supports liberal democracies, then the machinery of civil justice is some of the muscle and ligaments that make the skeleton work.”
The system has been allowed to deteriorate
“We are witnessing the decline of civil justice—the downgrading of the importance of civil justice, the degradation of civil court facilities, and the diversion of civil cases to private dispute resolution, accompanied by an anti-litigation/antiadjudication rhetoric that interprets these developments as socially positive.” “The anti-law story suggests that society is in the grip of a litigation explosion or compensation culture, and that the solution it to be found in cutting down court procedure, diverting cases away from courts, and pushing disputes into private resolution. The message is that ‘rights’ conflicts can be reframed as ‘clashes of interests’ which can be satisfactorily reformulated as ‘problems’ which can then be solved through mediation.” “Most importantly, the civil justice system has few friends in government, since it is through civil cases that the government is directly challenged. Indeed, the inclusion of judicial review within the civil justice ‘tent’ might be seen as a particular disadvantage for those interested in securing greater resources for civil justice.” “Having spent a large amount of time over the past 20 years hanging around courts and tribunals I can confirm the sorry state of the courts. When I talk of the crumbling of civil justice I speak as someone who enters the court buildings through the front door with the punters and I walk the public corridors. I have personally witnessed the decline. Terrible IT. Stressed admin staff. Too few books for judges. Judges having to wander down to waiting rooms to get their next case because there is no one else to do it. Cases listed for five minutes. This is not about lawyers’ fees. This is about the resources allocated to the courts. The public areas of some civil courts are run down and squalid. They remind me of the worst to be found in NHS hospitals. But the courts are not outpatients’ departments. They are sites of justice. They must have authority and legitimacy for which they have to command public confidence and respect.”
Ministers consciously reframed legal aid as a lawyers’ ramp
“In order to lay the ground for the changes made to legal aid by the Access to Justice Act 1999 (AJA 1999)—which did many things but increasing access to justice was not one of them—Lord Irvine consciously transformed the discourse surrounding legal aid. Legal aid was no longer to be presented as a welfare benefit for the poor. Instead it was presented as a gravy train for ‘fat cat lawyers’ who were greedily stuffing their pockets with taxpayers’ money. While it is politically risky to control expenditure on a welfare benefit, it is easy to take money out of the pockets of avaricious lawyers. In the discourse surrounding unaffordable legal aid, compensation culture and fat cat lawyers, civil justice and judicial determination became vulnerable. The DCA had to balance their books and the already weak investment in the civil courts started to dry up.”
Common solutions
“The common solutions that emerged from the reviews were the wholesale introduction of ADR (with the exception of Hong Kong); cost control; stripping down of procedure; and active case management by the judiciary to save costs to the justice system and the parties. In all of these reports, the discussion of fundamental reforms proceeds with little acknowledgement of any link between procedure, fairness and substantive outcome. With the notable exception of the most recent review in Victoria, there is little sense conveyed that any important social purpose is served by thecivil justice system or of any public good to be protected in civil justice. Certainly there is no suggestion that there are cases that should be facilitated into the courts. No sense that time and resources should be made available for particular types or classes of case. There is no plan. There are no principles other than efficiency. There is no space for substantive justice or the value of adjudication or any indication of the kinds of cases in which adjudication might be especially important. The only cases that are anticipated to proceed to adjudication are those where the lawyers are too incompetent or too greedy to achieve a settlement or the parties are too difficult and short-sighted to agree to a compromise”
The disturbing role played by members of the judiciary
“A troubling feature of the crises in civil justice and the shift away from trials and adjudication is the active part that some sections of the judiciary in England and other parts of the world have played in supporting anti-litigation, antiadjudication rhetoric and the diversion of cases out of the courts. While we might understand the hostility to civil justice of corporate and institutional defendants and, indeed, governments, it is more difficult to comprehend the contribution to this movement by influential sections of the judiciary. How have judges been co-opted by the government to assist in downgrading civil justice?”.
“Has there been some loss of confidence in the judicial role? A loss of belief in the inherent value of their own authority? Or is it that after years on the other side of the bench, judges develop a distaste for adversarialism? Or have the judiciary been co-opted by the emerging profession of ADR providers? (Certainly, some of the judges who have given the most robust promediation judgments are currently enjoying post-retirement careers as mediators.)”
ADR as the solution
“Some commentators have argued that the purpose of the reforms was to provide more access and less justice. But in fact, it is hard not to draw the conclusion that the main thrust of modern civil justice reform is neither about more access nor more justice. It is simply about diversion. About less law and the downgrading of the civil justice system. This seems to be as true for large commercial cases as for the everyday lower value problems of citizens. The push for less law is supported by the growing ADR profession which professes a mission to rid society of conflict, but which is more interested in the profits to be made from large commercial dispute settlement than the small change of the county courts.”
ADR
“While it is an important supplement to courts that should be made available to anyone contemplating litigation, it cannot supplant the machinery of civil justice precisely because, in civil cases, the background threat of litigation is necessary to bring people to the table. Mediation without the credible threat of judicial determination is the sound of one hand clapping.”
Monetary settlement
“The mediator’s role is to assist the parties in reaching a settlement of their dispute. The mediator does not make a judgment about the quality of the settlement. Success in mediation is a settlement that the parties can live with. The outcome of mediation is not about JUST settlement it is just about settlement.”
ADR works least well when imposed on unwilling parties
“What we have learned about outcome is that the readiness of parties to mediate is an important factor in settlement. Put simply, cases are more likely to settle at mediation if the parties enter the process voluntarily rather than being pressured into the process. It seems clear that increased pressure to mediate appears to depress settlement rates. When people are forced to mediate, they may go through the motions without any intention of settling.”
Where now?
“We need a positive understanding of the role and value of the civil justice system. We need a strategy for the cases that we want to encourage into the system and those that we would prefer to discourage and we need to articulate our reasons for both of these choices. Our judgment about the quality of our civil justice system should not be measured simply in terms of speed and cheapness, or by how many cases we can persuade to go elsewhere. Finally, we need to re-establish civil justice as a public good, recognising that it has a significant social purpose that is as important to the health of society as criminal justice.”
