MoJ Consultation on Civil Justice and Bash-a-Burglar: every man for himself replaces access to justice

Lady Hale’s speech on access to justice, the government’s “bash a burglar” scheme, issuing proceedings in Salford, competition from Singapore for dispute resolution as well as banking, eDisclosure and hoods packing heat – all in 2,000 words.

A Ministry of Justice consultation has as its title Solving Disputes in the County Courts: creating a simpler, quicker and more proportionate system and the sub-title Reforming Civil Justice in England and Wales. The consultation closed in the same week as the MoJ announces plans to clarify how much force you may use to kill a burglar and coincides also with a well-received speech by Lady Hale about access to justice.

There is a mixed bag here, human rights rubbing shoulders with the right to self-defence, and in the same bag as the cost of commercial litigation. The common theme seems to be the withdrawal of the state from the inter-action between its businesses and citizens. I am all for a small state, but there is plenty to trim before government abandons the provision of justice. If it was a business, you would say that this was a core function. The MoJ’s core function seems to be the provision of employment for civil servants.

Thanks to my being abroad, I bring you this consultation too late for you to make representations on it, but you may like to see what is going on – and this show will run and run.

The reference documents are as follows:

The MoJ consultation paper CP 6/2011

A post by Charles Christian on the Orange Rag of 27 June headed The judge says technology reform is not happening fast enough. This links to the consultation response by HHJ Simon Brown QC of the Birmingham Mercantile Court and to a letter from him to the Times of 23 March.

My own representation, made on 29 June which, as you will see, focuses on the urgent need for judicial training.

I think that we have to accept that none of the demanded improvements will happen, in the short term at least. Modernisation of the court systems was promised by new Labour in their first year in office and, like so many of the Blair government’s promises, was either dishonestly made at the time to catch the next day’s newspapers or was blocked by Gordon Brown as part of his strategy of spiking Blair’s guns wherever possible. Civil servants are adept at blocking change, hopelessly out of their depth when negotiating procurement contracts, and always willing to sacrifice client-facing staff and services in favour of jobs for senior paper-shufflers.

The centralising of claims issue in Salford (up somewhere near Manchester) referred to by Judge Brown is a good example of an economy made by senior civil servants who are entirely disengaged from the practical, commercial and logistical imperatives of litigation lawyers and their clients. What does it matter to a civil servant if something happens next week rather than now? Their jobs, salaries and pensions will still be safe, and they can always toss a few court clerks to the wolves if asked to reduce head-counts. If a judge complains of the Salford experience, you should hear what the lawyers have to say.

I drew attention to some aspects of this in a recent article – see UK government bids for a world-class legal reputation whilst neglecting the basics back home. That referred to an MoJ paper which promised some glossy brochures and initiatives – the sentence “We will ensure that the Trade and Investment Ministerial Subcommittee discusses legal services promotion by the end of 2011” gives you the flavour of it. It was wholly inadequate as a statement of intent with regard to the invisible exports which was its primary target and, as my article’s heading implies, said absolutely nothing about the fundamental issues of access to justice for the small to medium companies which form the backbone of Britain’s GDP. It did keep some civil servants occupied between pay-days, and complied with the Chancellor’s demand that every department produce something with the word “growth” in its title, so it was not entirely a wasted effort.

The present mood of our senior judiciary may be judged by this report on the Human Rights Blog of Lady Hale’s “wide-ranging examination of the meaning of ‘access to justice’”, to which it links. It has received attention mainly in the context of the increasing restrictions on legal aid, but Lady Hale’s observations on the costs of gaining access to the courts are applicable equally to businesses large and small. Their rights to bring claims and to defend themselves are really illusory if the justice they seek is not affordable. She also disposes briskly of the idea that the sole duty of the court lies in forcing parties to reach agreement.

I covered much of this in an article of February 2009 headed Mediation – not about just settlement but just about settlement, sweeping up forced mediation, broken promises, court fees and all the other topics which group loosely under the heading “access to justice”. To save you reading it, I give you an extract which was an early formulation of what I now see as the only remedy – self-help.

The corollary to the judges’ powers to make “any order” is that parties can seek any order which will abbreviate the number of hours spent in the passage of a case from issue to trial. The Rule 3.1 discretion is buttressed as regards disclosure by specific provisions designed (and well-designed – this part of the CPR, at least, is consistent with Woolf’s positive procedural aims) to cut through unnecessary disclosure and to allow the judge to get at what matters. Judges with a grip on the subject can require parties to argue why a particular aspect of disclosure is needed – that is, will be helpful in finding the facts on which justice depends – and can demand costs estimates showing one approach versus another. Proportionality is the product of cost against likely value.

There is little evidence that parties are coming to CMCs equipped to answer these questions, or that judges are making them do so.

We are unlikely to see the former until we get the latter – judges find it hard to self-start on a subject for which neither their experience nor their training has equipped them.

Lady Hale refers obliquely to another form of self-help when, at the top of page 5 of her speech, she says this:

The idea, recently floated, that some claims recognised by the law should become non-justiciable in our courts is truly alarming. This would turn debts and other legal duties into voluntary obligations, binding in honour only. And we know what risks of truly alternative enforcement mechanisms those can bring.

You think it fanciful, perhaps, that commercial parties should resort to more primitive means of resolving their disputes if the courts prove inadequate? Many years ago, I sat in conference with counsel and a client. At the back of the room sat a large gentleman whose armpit bulges, it was implied, were not all provided by nature. His role was to make sure that my client would come out on top if “alternative dispute resolution” (as we did not then call it) took physical form. Fortunately, we got our injunction and the other party complied with it.

Although I sometimes think that a shoot-out in Temple Gardens might be a simpler way of resolving disclosure disputes, the self-help which I have in mind is rather different. It involves parties recognising a distinction between the justiciable elements of their dispute and the expensive mechanics of bringing it before the court. That requires cooperation and sensible discussion as to what is really needed as evidence. That in turn needs new skills on the part of the lawyers, not just of understanding how technology can help slice through the volumes of potentially disclosable data, but as to how the rules offer much more scope for informed discussion and for informed exercise of judicial discretion than many realise.

We must, for the moment, give up hope that the government will fund the training of judges in e-Disclosure matters. This contrasts with the approach presently being taken by the Australian Attorney General, referred to in my submissions to the MoJ. If the state will not train the judges, then the parties must do it, one case at a time. Judges vary in quality, of course, but most of them have spent their lives picking up new subjects from scratch. Before the parties can do this, they must acquire the skills and learn the arguments for themselves. The law schools and those who set the qualification standards seem at last to be getting the idea that lawyers need business skills and technical knowledge in addition to some law, but we cannot wait for that to come through in 21st Century lawyers.

As I said in my article about the MoJ paper, major international clients can choose to take their business elsewhere. I am afraid that I think that they will do this, and that Dubai and Singapore will become the new centres of dispute resolution. As I write, we learn that Goldman Sachs has outsourced 1,000 banking jobs to Singapore – not IT jobs or the accounts department but high-paying, skilled positions in sales and investment banking. The Singapore court understand the benefits of case management by trained judges – one of the two ediscovery conferences which I am going to there in the next four months is actually organized by the Singapore Supreme Court. Meanwhile, the MoJ “will ensure that the Trade and Investment Ministerial Subcommittee discusses legal services promotion by the end of 2011”. It is almost as if the Men from the Ministry want to ensure the fulfillment of their predictions about competition from other jurisdictions. Perhaps they have bet their substantial pensions on that outcome.

I can foresee only the worst for those who are dependent on legal aid, who will either be debarred from access to the courts or will join the army of litigants in person, fighting the battles through courts whose judges will despair at the court time and resource which must be given to ensure them a fair hearing.

How does the government’s “bash a burglar” scheme come into this? It is another form of self-help really. For reasons not entirely of their making, the police are stretched very thinly. It is not that they do not have adequate resources, but they are hampered by considerations they cannot control – see this BBC article for the stupid reason why we are paying derelicts to stay on duty, for example – and anyway, you need ‘O’ Levels and stuff to do budgets and balance the books. Burglary and other forms of theft are rising with the recession, and the chances of PC Plank heading off a crime, catching the perpetrator in the act, or tracking him down afterwards are minimal (and are about to reduce further with the government’s imminent closure of the Forensic Science Service).

PC Plank has targets to reach, however, and likes to come back from a crime scene with something to show for it in the form of an arrest. Increasingly, that is of the victim, particularly where he or she has resorted to self-defence. Although it is slightly unfair to suggest that the government’s purported “clarification” of the law relating to self-defence is driven by budgetary considerations, it would certainly save money in police time and prison occupancy if we could all just bump off those who disturb us – I have a pretty big list of my own, starting with people who use their phones on trains.

I am not being entirely serious here, of course. There is a link, however, between the self-help which is being forced on parties with civil disputes and the growing feeling that we are on our own where crime is concerned. We all have our own ideas as to where George Osborne should make his cuts, and it is trivially easy to spot the special pleading in every argument for an exemption or a special case. Access to justice is not a special case, but a fundamental duty of government. Lady Hale was far too politic to criticise the government, but her speech should become a text for those who argue that the state should do more, not less, to make justice available to its businesses and citizens.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Access to Justice, Civil justice, Courts, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Mediation and ADR, Ministry of Justice. Bookmark the permalink.

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