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Austerity: an impetus for greater harmonisation of justice systems across the world?

Recent reports show how our approach to civil justice is being shaped by the current age of austerity.

Read all about it

A whole series of reports and speeches, published during 2015, have identified the pressures on public and private resources and how that impacts on state funding for civil litigation as a whole, and on individual access to justice (the supply and demand ends).

The reports unanimously agree on the need for creative solutions. They make interesting reading, and may provide pointers to the future shape of civil justice.

My “whistlestop” tour through some of the key items provides a flavour of the issues:

February 2015: “Online Dispute Resolution for Low Value Civil Claims”, a report by the Online Dispute Resolution Advisory Group of the Civil Justice Council

Some key conclusions:

  • For low value claims, our current system is “too costly, too slow and too complex, especially for litigants in person”. The report calls for “radical change” in the way low value civil claims are handled.
  • HMCTS should establish an internet-based court service.
  • To improve access to justice, it is vital not just to have better methods of resolving disputes, but also to have effective ways of avoiding and containing disputes.
  • Technology is evolving fast.

For more details, see our update on the Practical Law website.

April 2015: “Delivering Justice in an Age of Austerity”, a report by Justice

Some key conclusions:

  • Our justice system is “in crisis”, and it is increasingly difficult for ordinary people to navigate a justice system designed on the basis that people will be legally represented. There has been a sharp rise in the number of litigants in person.
  • A new model of dispute resolution is required in the civil courts and tribunals. One solution might be for a primary dispute resolution officer, specialised in particular types of dispute, to identify relevant issues, the applicable law, the appropriate procedure and the evidence required at an early stage. This would allow them to get to the heart of the case quickly, and to resolve as many cases as possible using alternative dispute resolution techniques. Matters would be referred to judges only where no other form of resolution was likely to be effective or appropriate.
  • A long-term goal is the development of an integrated online and telephone service to provide legal information, advice and assistance.

For more details, see our update on the Practical Law website.

22 April 2015: “Delay Too Often Defeats Justice”, a speech by Lord Dyson MR at a Law Society Magna Carta event

Some key observations on the future shape of civil justice:

  • Cost reduction is a way of promoting access to justice, and efficiency can reduce the waste of scarce public resources, which is particularly important when financial pressure on the court is so acute.
  • Unnecessary court hearings should be eliminated. Hearings that are necessary should be as short as possible.
  • Three means of furthering the pursuit of efficiency are:

Proper use of technology

Lord Dyson identified a need for proper investment in, and use of, technology. Referring to the CJC’s report on online dispute resolution, he said that he believes “it convincingly demonstrates one of the ways in which we should develop the justice system to make it more accessible and more efficient, speedy and affordable than it now is.” He saw it as paving the way for “a major shift in the way in which we conduct civil litigation in this country”. He has little doubt that, before long, all claims will be filed online, the court file will be online, and paper bundles and authorities will be “past history”. He also referred to an e-filing system for litigants in person in France, that allows them to attempt to resolve small disputes using online dispute resolution but, if that fails, helps them to create the necessary court documents to commence a claim. He noted that systems such as this “open up justice”, and expressed the hope that something similar will emerge here whilst cautioning that “technology must be the servant of justice, not its master”.

Effective procedural reform

Rules should not be too complicated, and they should be applied in a fair and efficient manner. Lord Dyson recognised the challenges of simplification but noted that the fact that a high proportion of litigants using the civil courts are self-represented cannot be overlooked. Procedures need to be reformed to make litigation more effective, and to reduce cost and delay. Lord Dyson could not see any reason why the parties should not have some freedom to manage their litigation (for example, allowing them to “opt out of” certain aspects of procedure, to allow their claim to be dealt with more speedily).

Effective case management

The value of effective cost management and budgeting should be seen over the entire proceedings. It benefits not just the immediate parties but court users generally (that is, both the private and public interest), as it helps to ensure that each claim is allocated a proportionate amount of the courts’ entire resources. This promotes access to justice for all.

For more details, see our update on the Practical Law website.

15 May 2015: “The English Experience of Access to Justice Reform”, a speech by Lord Dyson MR

Some key conclusions:

  • Successful reform means more than simply changing the rules. The Jackson/civil justice reforms included the introduction of a menu option for disclosure, and the option of “hot tubbing” (hearing concurrent evidence from expert witnesses), both of which were designed to tackle areas that significantly contribute to disproportionate costs. Anecdotal evidence suggests that neither have been embraced by judges or practitioners. Many lawyers are “rather resistant” to change.
  • Effective implementation of procedural change requires the courts and legal profession to understand the changes and their rationale. The judges must take the lead, so it is essential that they have the necessary training.

For more details, see our update on the Practical Law website and Jamie Susskind’s recent blog post.

25 May 2015: General report for the XV World Congress of Procedural Law (Kramer, Xandra E. and Kakiuchi, Shusuke, Relief in Small and Simple Matters in an Age of Austerity (May 25, 2015). Available at SSRN: http://ssrn.com/abstract=2610773 or http://dx.doi.org/10.2139/ssrn.2610773)

The report considers information from 19 jurisdictions, selected to provide a mix of common law, civil law and mixed jurisdictions, and different-sized countries. Information was obtained from Belgium, England & Wales, Germany, Latvia, Lithuania, Poland, Spain, Turkey, Iran, Israel, Japan, Korea, Algeria, Egypt, Ghana, Canada, United States, Brazil and Venezuela.

It identifies pressures on both the supply side (ie central government funding for civil litigation) and demand side (resources available to users of the civil courts), and focuses on small and simple matters.

Some key conclusions:

  • Simplified procedures and the use of electronic systems offer the potential to save costs.
  • Countries that cannot adapt to austerity and the need to modernise the judiciary and procedure might, in the long term, face an “unsustainable judiciary”.
    Austerity might require not just a “culture shift” in terms of litigation procedures, but also a “redefinition of the role of judges, lawyers and the parties”.
  • Austerity does not only bring “bad things” but can give impetus to invest in a more effective allocation of scarce means. Modernisation of the judiciary and innovation in procedure may lead to “better justice”.

Pulling it all together

Recurrent motifs include:

  • There is a clear need for new approaches and flexible procedures, particularly for low value claims.
  • Technology has a significant role to play.
  • Systems must support the increasing numbers of litigants in person.
  • Alternative dispute resolution methods should play a prominent role.

It is striking that many jurisdictions are facing the same challenges. Globalisation and e-commerce are drivers for greater harmonisation of legal systems, but perhaps the impact of austerity measures will significantly speed up this process.

Key drivers of litigation costs, notably disclosure and expert evidence, are particularly in the spotlight. If measures such as the menu option and “hot tubbing” fail to bring costs under control, might more radical reform be required? Are there signs that we might eventually adopt more of a civil code approach for disclosure, for example (at least for smaller claims) focusing on just a few key documents? Time will tell, but there do seem to be early signs of a move towards more harmonised litigation procedures across the globe.

Practical Law Dispute Resolution Beverley Barton

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