Beverley Barton, an editor in the Practical Law Dispute Resolution team, recently had the opportunity to interview Sir Vivian Ramsey, the former head of the TCC. In this third and final part of the interview, Sir Vivian considers what the future might hold for civil litigation in England and Wales. In Part 1, Sir Vivian told us about his background and early career. In Part 2, he gave some perspectives on recent legal developments.
Will “ordinary people” still be able to access the courts to resolve civil disputes in five years’ time, do you think? Or might we have something like compulsory mediation by then, or a scaled down procedure for claims of a certain value?
I think one of the changes over the past few years has been the removal of legal aid from a lot of cases, meaning that litigants then have a choice, very often, of deciding whether they are going to spend savings on pursuing the litigation, whether they are going to self-litigate (be litigants in person), or whether they are just not going to pursue those cases.
The professions have been well aware of this problem and, through pro bono work by a number of organisations, there has been an increasing willingness by the legal professions to help people to present their cases in an effective manner. I think that ability will still be there but one has to say that it will be more difficult for substantially more parties to have pro bono assistance, in the future.
So far as the effect of the Jackson reforms, I do think that if costs are kept proportionate – and we mentioned fixed fees and so on – then it will at least be some encouragement to parties to litigate the smaller claims.
As to the question of whether or not there will be compulsory mediation: I think, in this country at least, it is going to take some time for something like compulsory mediation. But what I do think is that people with small claims will be encouraged to seek other ways of resolving those disputes, and it may well be through a procedure which is much more streamlined than the expensive way in which things are done at the moment.
There are possibilities of adjudication, ENE, mini-trials – all sorts of ways in which one can help parties to resolve their disputes. But there will always be some people who should be entitled to a court decision at the end of the case. I think that there will be financial difficulty for a number of people in accessing the legal system, even after the Jackson reforms have taken their full effect.
Is there a solution to that, do you think?
Legal aid has always been the way in which it has been dealt with before. If legal aid is sensibly dealt with, rather like litigation funding, overall, the contribution of the government to civil legal aid should be small (because, by and large, they should recover their costs in cases). But I don’t think a commercial view such as that has necessarily been taken in terms of legal aid.
Outside this area, obviously, the position of publicly funded criminal barristers is also a serious problem which impacts on the whole of the legal profession.
What changes do you foresee for English civil justice over the next five to ten years? Are online dispute resolution, and other technological developments, part of that?
I think we will probably move into much more being done either by telephone, video conference, by online access, and using technology in the way in which it is always meant to be used: to avoid large numbers of paper documents being used and large numbers of people attending a hearing for an hour with everyone having to travel a lot to get there. I think, certainly, the use of technology should avoid wasted costs and wasted time of the civil justice system.
It may be that, at the lower end of the scale, there will be a degree of online dispute resolution. Obviously, it has been very successful on eBay and elsewhere, and it may be that that is an area for smaller claims. But I think the important thing about the English civil justice system is to keep, for major pieces of litigation, what is described as the “Rolls Royce system”, but which is a thorough review of the facts, through the evidence – both witness and expert evidence – and full analysis of the legal position through counsel’s advocacy. I don’t think this legal process, which is the mainstay of our civil justice system, will change much.
Disclosure is, I think, bound to change if only because now, with electronic media, there is so much more by way of documents, than there was some years ago. But I think the fundamentals will still be the same for the English civil justice system in the next five to ten years.
Standard disclosure is probably still the starting point in many cases. The TCC was increasingly making orders for parties to disclose their own documents and make focused requests where the cost of standard disclosure was disproportionate. In highly technical cases, that happens quite easily. Suddenly, you discover that for a fairly small claim you have a very high degree of expenditure on disclosure. I think you can tailor it in those cases.
Dispute resolution lawyers have just been through a period of great change. What would be your advice to litigators practising today? What are the key skills they need to be successful?
Well I think, at one stage, litigators had to specialise in knowledge of the law and that was the only skill a litigator needed.
I think we went through an era when the skills of the litigator were to persuade the other side to give up, by voluminous correspondence during the course of the litigation.
Now, I think, the litigator has to have a whole range of both management skills and personal skills. You find, I understand, litigation departments these days which have psychiatrists attached to them, to deal with such questions as the presentation of evidence, what are the likely ways in which the other party will react, and so on. So I think you now need many more skills. Costs management is one of them. You need to have the skill to be able to put together a budget at the beginning that is going to be somewhere close to the budget at the end.
So I think pure legal knowledge is still of very great importance, but I think the modern litigator needs to “bolt on” a lot of what are called soft skills, in order to represent the client and properly fulfil the wishes of the client in terms of the conduct of the litigation.
So we have a new “renaissance litigator”?
Yes, I think so. Legal training now has many more facets, whereas, at one stage, it was just black letter law and procedure.
