On not going to law
Robert Egerton
Our system of litigation in England is too slow, too expensive, too cumbersome and too formalistic. Those adjectives are taken from a report* of 'Justice', the all-party association of lawyers, and are the conclusion after four years' work by a committee instigated by Lord ShawCross, chaired by Sir John Foster and including the late Lord Tangley and many other lawyers distinguished in their particular spheres. In a welcoming foreword Lord Devlin sums up: "The trouble at the root of our legal system is that we have allowed it to grow up in an atmosphere in which, where justice is concerned, money is hardly an object."
Since 1946 we have been developing a fairly comprehensive system of legal aid for the small man, under which the state bears the part of his costs which he could not possibly afford. Various experiments are also being conducted on small claims, where it is obvious that a way has to be found of avoiding the cost of professional fees. The 'Justice' report now pronounces emphatically that a great deal is wrong with the way we conduct all cases, large or small.
In the main the courts in this country play a passive role, leaving it to the representatives of each party to take the initiative. All too often this means that the lawyers for the parties are free to delay, conceal or manipulate their cases in whatever way they think is most likely to lead to a favourable settlement for their client.
If, however, the case turns out to be one of that very small minority which will have to be decided by a judge at a hearing a vast amount of preparation, much of it unnecessary, will have to be done so that all the arguments and evidence are ready for any line which the judge, hearing about the case for the first time, may happen to pursue. He comes into court to be confronted by pleadings which the committee describe as resembling "nothing so much as naval warfare before the advent of radar, when each side made blind forays into the sea area of the other, while giving away as little as possible about the disposition of his own forces." He proceeds to hear the evidence for the parties, each witness being examined, cross-examined and re-examined by the *Going to Law (Stevens and Sons E1.00) parties' counsel, and after both counsel have given their summary of the evidence and tried to sway him in their direction he will, if he possibly can, go straight on and deliver his judgement. It is a trial which, as the report puts it, is "dramatic, but unlike the drama of the theatre or the concert hall is unique and unrepeatable. There is no going back, no time for second thoughts. While it takes place 'everyone concerned in it concentrates on nothing else: once it is over it is irremediable."
These two salient features — the parties being left so much to their own devices throughout the preliminary stages but having to prepare for a grand, once-and-for-all trial if neither party has succeeded in breaking the confidence of the other on the way — produce a formidable list of evils, among which the committee include: delay; late investigation, concealment and surprise; unnecessary work and expense; unfair settlements; decisions on incomplete facts; inflexibility; formalism as against commonsense.
On general principles of reform most people will agree. Indeed laymen will be surprised that the committee found it necessary to state that cases ought to be decided on their merits and not on tactics. The objectives of "more court intervention where, it will do most good, greater mutual disclosure of evidence at an early stage, and quicker resolution of disputed issues of fact and law" are also unexceptionable, but for producing practical reforms the committee suffered from limitations. In a report which is much concerned with the expense of proceedings it manages to avoid any mention at all of the large brief fees which have to be paid to counsel in the heavy cases which most of the committee must have had in mind. It was not prepared to consider any major change in the procedure at the hearing itself.
In all but emergency cases, a claimant , would have to delve deeper, spend more and wait longer before he could start proceedings, whereas the prompt issue of a writ shows the defendant that the claimant really is prepared to submit both of them to the decision of a court is all that is needed to dispose of a large number of disputes. Thereafter the Masters, who deal 'with interlocutory proceedings, would be expected to issue far-reaching directions about the course of the trial with nothing more to go on than the written documents delivered to them.
The importance of the 'Justice' committee is that the suspicion that the present system is seriously out of date is now confirmed by high authority. The next step should be for more general practitioners and Masters to be called in to advise from their practical experience how more cases can be decided on merit rather than on tactics.
The layman also has a part ot play. He must not expect lawyers to go far enough . in reforming themselves or to move fast enough. Legal aid would not have been launched on such a grand scale if it had not been for the war; but, as the report points out, the courts exist to serve the ordinary litigant who appears only sporadically in the legal field. There is no pressure group to represent him, but there are others such as insurance companies and trade unions who are directly and indirectly regular patrons of the courts and the legal profession — and there is the press, which knows only too well the cost of legal actions.. It is time such bodies demanded an improvement in a system which responsible lawyers have now shown to be riddled with defects.
Robert Egerton is a London solicitor
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