"MODERNIZING" THE BRITISH COURTS:
By GLENN CAMPBELL
|Thursday, Nov. 01, 2001|
I recently listened with some surprise to a news item on BBC's Radio 4 which revealed that a participant in the TV game show "Who wants to be a Millionaire?!" had brought proceedings against the producers of the programme, after a dispute as to whether he had won £1,000,000 by improper means. The contestant, the reporter explained, had issued a writ.
The American reader of this column, especially if he or she is a lawyer, may find nothing at all unusual in this. But to the more fashion conscious of the English Judiciary, reference to a writ would actually, unbelievable as it might sound, be improper.
The Woolf Reforms: Changing Procedural Terms, But Not Titles
In 1999, in the English Courts, a new code of civil procedure was introduced to replace the prevailing Rules of the Supreme Court, dating from 1965. The reforms were prompted by an investigation into the civil justice system conducted by Lord Woolf, now Lord Chief Justice of England, and then "Master of the Rolls" one of the most senior Appeal Judges.
The Woolf Reforms were introduced to combat, it was alleged, two scourges of the civil justice system: cost and delay. At the same time, the reformers sought to "modernise" the system to make it more "accessible" to "ordinary people," a class which no one seems to have bothered to define and which is, perhaps, incapable of useful definition.
Led by Lord Woolf, the reformers attempted to tackle the shocking prevalence of antiquated terminology familiar to lawyers. There were those who wondered whether judicial titles which include the common use of the expression "My Lord" when addressing Judges not otherwise entitled to that appellation might also be reformed. Perhaps, in future, the trial lawyer could address the tribunal as "Mate" or "Buddy," or even "Mister", "Citizen" or "Comrade"? But this was not to be.
The Abolition of the Writ and of the Plaintiff
The writ, I am sorry to tell the reader, was abolished. It is now the charmingly named "claim form." Third party proceedings, too, are dead and buried. Thanks to the reformers, we now have the evocative "Part 20 Proceedings." So much easier for the lay client to remember and comprehend.
The antiquated "Plaintiff" might still feature in the novels of Dickens, in the comic opera of Gilbert and Sullivan, and in the courts of the United States, but not in the Courts of England and Wales. Now, the party seeking relief is a Claimant.
Shortly after the new rules were introduced, a story, perhaps apocryphal, made the rounds among British trial lawyers. It involved an advocate opening a trial in the High Court with the time-honoured words "My Lord, I appear on behalf of the Plaintiff..." According to the story, the Judge trying the action decked out in wig and red robes and aged around 70 reacted with such venom at this inadvertent challenge to progress that there must have been a substantial risk of his false teeth ricocheting out of his mouth, flying across the court room, and embedding themselves in the wood panelling, as His Lordship expostulated "CLAIMANT, Mr. ...., CLAIMANT!!!"
No More Latin; No More Rules
The traditional use of Latin tags as a means of encapsulating a concept in a convenient phrase, is now forbidden, at least by a minority of Judges unduly anxious to appear modern, up to date and "in touch" with the concerns of "ordinary people."
No alternative has yet been found for "pro bono," although there is perhaps a committee sitting somewhere in London trying to devise one. "People's Friend," whilst superficially a little Stalinist, might suffice.
Meanwhile, the new rules introduced the concept of the "overriding objective." That term required a judge determining a dispute concerning procedure to "do justice" between the parties, as the judge saw it. The idea of doing procedural justice according to settled principles of law rather than judicial idiosyncrasy appears to have been abandoned.
The End of Oral Advocacy, to the Client's Detriment
For a lawyer used to dealing with the written word, this is perhaps an improvement. Whether it renders evidence more credible or is suited to the ways of the "ordinary person" more used to expression and debate by oral means, is far more open to doubt. It may save some judicial time in Court, but at a considerable cost to the litigant.
One High Court Judge, in a speech to the London Solicitors Litigation Association in November 1999, described the new approach to trial procedure this way:
"The traditional course of litigation afforded the litigant of listening to the mellifluous presentation by his advocate of the history and facts as he contends for them and of the law as it appears to his legal advisers a presentation on occasion directed as much to the press as to the judge. This was his 'day in court.' Any continuing such expectation is likely today to be disappointed.
If the client has still any such expectation, it is surely the duty of his legal advisers to disabuse him of it and explain the critical role of the skeleton argument (which can contain the input of the client and be sent beforehand to the client for his approval). He should be told that it takes the place (at least in part) of the opening address.
I regret to say that the complaint of the client is often attributable to the failure to appreciate the role and importance of the skeleton - and the failure of his legal advisers to give the preparation of the skeleton the importance and attention it requires. He should also be told that the questioning by the judge is the opportunity to make more and not less of what is and can be said and he should then be allowed to see his advocate take advantage of this opportunity."
This is part of a speech given to the London Litigation Solicitors Association, which can be seen in full at www.lcd.gov.uk
Ah, so it's all down to the lawyers then! No fault of the Judiciary that the client doesn't feel his or her case was properly listened to as a consequence of the new, judicially-driven forms of civil procedure. Whether this is an attitude that would find favour in the United States of America, I leave it to the reader to judge.
Saving Justice? Why the Reforms Didn't Work
Even before the Woolf reforms were enacted, Mr. Roland Williams, in his book "Saving Justice," set out with clarity their flaws. And experience with the reforms afterwards has only confirmed his analysis.
The English judiciary suffered something of a battering at the hands of the popular newspapers in the early 1990's. Now, brandishing their new Civil Procedure Code, with its modern and up-to-date terminology, and their copies of the Guide to Public Relations and the Media, which the Lord Chancellors Department has supplied to them, they may feel better equipped to address the challenges of the new millennium. Then again, perhaps not.
A Lesson for America?
There was a belief here in certain quarters that something anything had to be done about civil procedure and the cost and alleged delay in civil litigation. The Woolf Reforms were the result of those demands.
When Americans consider these questions, the English experience might be a salutary warning. There are no doubt some Judges who feel that their public image is enhanced if Latin tags and the use of the words "plaintiff" and "writ" are prohibited, and if they can deal with the mechanics of litigation so as to produce what appears to them personally to be a "just" result.
This rather patronising approach relies on the erroneous assumption that a layperson cannot understand novel terminology if properly explained by a competent lawyer. It also places in the hands of the individual tribunal very considerable, and potentially dangerous discretionary powers. Yet whether it actually saves either money or time, is more than questionable.
What is almost certain is that the lay client is just as likely as before to leave the courtroom out of pocket. The new rules do not decrease, and may even increase, the serious if unfounded possibility that the lay client will perceive that the judge decided the case before anyone went into the building for trial, on the basis of reasons that the lay client is unable to determine.
In the long term, that is bad news, not only for litigants and lawyers but, in the end for the courts themselves and for the judges who sit in them.