Lord Diplock in Bremer -v- South India Shipping 
"Every civilised system of government requires that the
state should make available to all its citizens a means for the
just and peaceful settlement of disputes between them as to
their respective legal rights. The means provided are courts of
justice to which every citizen has a constitutional right of
access in the role of plaintiff to obtain the remedy to
which he claims to be entitled in consequence of an alleged
breach of his legal or equitable rights by some other citizen,
Lord Woolf in "Access to Justice" June 1995
"In considering the problems of the civil justice system
I have had in mind the basic principles which should be met by a
civil justice system so that it ensures access to justice:
(a) It should be just in the results it delivers.
(b) It should be fair and be seen to be so by:
- ensuring that litigants have an equal opportunity,
regardless of their resources, to assert or defend their
- providing every litigant with an adequate opportunity
to state his own case and answer his opponent's;
- treating like cases alike.
(c) Procedures and cost should be proportionate to
the nature of the issues involved.
(d) It should deal with cases with reasonable speed.
(e) It should be understandable to those who use it.
(f) It should be responsive to the needs of those
who use it.
(g) It should provide as much certainty as the
nature of particular cases allows.
(h) It should be effective: adequately resourced and
organised so as to give effect to the previous
The final report of Lord Woolf "Access
to Justice" July 1996, provided a unified set of rules
for the management of litigation in both the High Court and County
Court of England and Wales. His report and recommendations has the
support of the Government. It will be April 1999 when they
The new provisions are intended to produce acceptable outcomes
to court actions in a shorter time with less expense. These
arrangements will be welcomed by lawyers. But only those who
welcome a culture change too.
Pause here to reflect. In Arbitration there is a brand new
approach to procedure. In Adjudication there is a brand new
approach to procedure. And here in Litigation there is to be a
brand new approach to procedure. At the heart of all these options
is the same basic task: to deal with, and decide, disputed facts
and law. As for the options and the procedure in which ever forum,
that procedure must always be fair. The differing procedures are
however reconcilable with the same basic task. Litigation remains
an adversarial process. The Court only decides on the admissible
evidence adduced by the parties through their advocates. Woolf
will provide that streamlined adversarial process. New
Adjudication is a fast track investigative process over a
28 day period which hardly anticipates interlocutory stages
other than a getting to the bottom of the issue in double quick
time. New Arbitration can be adversarial or can be investigative
and can be via documents only, can be via full hearings with
evidence on oath with experts, with solicitors, with barristers.
It is , in short, what the Arbitrator or the parties make it.
Whether litigation or arbitration or adjudication or any form of
inquiry, the procedure must fairly balance the need to be fair and
the need to be expeditious and the need for the costs of the
proceedings to be kept within reasonable bounds.
As well as this, the culture change requires something else.
These tribunals of whatever sort will never really become a place
of first resort (with the possible exception of New Adjudication).
So if the court is a place of last resort, what's to be done
beforehand? Woolf makes plain that Alternative Dispute Resolution
(ADR) is a real avenue to be properly explored. This was recently
explained by Mr Justice Girvan in the High Court of Northern
Ireland, Chancery Division when refusing both parties an
"Civil law disputes should preferably be resolved by
agreement between the parties. It is a frequently repeated
truism that an agreement between the parties is much to be
preferred to a solution imposed by the court. If the parties
cannot resolve the dispute by agreement mechanisms must exist
for the dispute to be brought to a conclusion. Those mechanisms
may be by arbitration, by the court or by alternative dispute
resolution. When the parties because of the nature of the
dispute and because of the inability to resolve their
differences amicably are forced to litigate the dispute before
the courts the submission of the dispute to the courts requires
the party to submit to the discipline and structures established
by the court. Being litigants before the court the parties are
entitled to expect the court to ensure an efficient and
effective mechanism to deal with their litigation but for its
part the court is entitled to expect that the parties appreciate
their duty to comply with the rules of court and the practices
of the court and to appreciate that the court has responsibility
to other litigants and to ensure the smooth administration of
justice. The courts should not be perceived to be in the nature
of a private umpire who services can be turned on and off at the
mere motion of individual litigants."
Mr Justice Girvan made clear that he expects the negotiation
route to be exhausted before the date of trial and that when the
trial comes on for hearing the trial will start promptly at the
appointed time. Moreover, once a trial starts the court will
normally expect the matter to proceed uninterrupted in order to
keep to the scheduled time-table.
The message is clear. The duties on the lawyers for both sides
is to seek a settlement. The days of a client refusing to send
negotiating signals to the other side are over.
Litigation is attempting to serve the community, whether
domestic or commercial, in a better way. So too are the lawyers
who administer the system.