Litigation

Lord Diplock in Bremer -v- South India Shipping [1981] A.C.909 said:

"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, the defendant."

Lord Woolf in "Access to Justice" June 1995 said:

"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 legal rights;

- 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 principles."

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 are introduced.

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 adjournment:

"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.

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