The birth of a new language in the courtroom - English
Monday 26 April 1999
Pleadings are supposed to set out your case with due particularity but Lord Donaldson, a former Master of the Rolls who liked to get on with things, once said that the best time to look at the accuracy of the pleadings was after judgment had been delivered. Such a blatant lack of respect for procedure caused whimpers of alarm along those dark corridors in the High Court where lawyers lurk. Those whimpers may have turned to muffled cries in the light of the new rules.
It is impossible to relate all the procedural changes in a way that does not bring on immediately a period of deep but disturbed sleep. One textbook alone runs to 900 pages. However, it is possible to comment upon some fundamental changes.
The new procedures are more "consumer friendly", to use the parlance of the day. The old procedures deterred litigants conducting their own cases. Before they could gather up their papers they had failed to comply with some rule they had never heard of or, if they had, which they would not have understood. Under the new rules, this may be less likely to happen. The ability of a litigant to conduct a case personally has become more important now that the present Government is abolishing legal aid. It is rather like encouraging self-treatment under the National Health Service.
The Bar has been advocating the use of simple English for years. Legal jargon, including the use of Latin, has helped to create the mystic and protect lawyers from invasion by the ordinary people.
"Didn't your client know it was res ipsa loquitur?", enquired a Welsh County Court Judge.
"In the valley where he lives," said the Welsh barrister, "they scarcely talk of anything else."
Such exchanges will be old folklore. Latin has gone: no more erudite exchanges from those happy few who did classics at an ancient university. All the paperwork has been simplified and made intelligible to anyone who can read and write.
However, in other ways, procedure has become more important. Procedure should be a tool to aid the achievement of justice. It should not be an end in itself. It is a travesty of justice when someone with a meritorious case has it struck down for non-compliance with some rule of procedure. Sadly, this is likely to be one of the consequences of the new procedures.
Non-compliance with time limits could have disastrous consequences for the litigant. The new procedures tend to move away from the more liberal attitude that pertains under the old regime towards dismissing a case for non-compliance. It is said that if you have broken the time limits, you are also delaying other litigants. However, it does seem wrong to penalise the litigant for the errors of his lawyers: surely a better consequence would have been to penalise the lawyers personally in costs but leave the action to proceed and be tried on the merits.
In other fundamental areas the new system is not going to work without other changes being made, as well. The concept of the "hands-on judge" is at the centre of the new system. One judge is in charge of your case; you can go and see him at any time and he can deal with procedural matters, preliminary issues and the like to speed things along. It is a wonderful concept, but will it work?
The answer is, probably, "no", since no one dares touch the hallowed circuit system - not even the present Lord Chancellor, who is prepared to touch most things. Although Lord Beeching had a go at it, the circuit system has remained largely intact since Henry II invented it.
High Court judges spend half of each term on circuit at various old assize towns around the country where it is rumoured that at judge's lodgings they eat dinner on their own wearing a dinner jacket, a butler cleans their shoes and a chauffeur takes them to court in a limo with motorcycle outriders.
The result is that when you want to make an application to the judge whose hands are on your case, you first of all have to find him and then proceed to Newcastle upon Tyne or wherever. This involves considerable cost to the client or the legal aid fund. The system has been tried with multi party cases and it has often been found impossible to lure the judge back to London; in one case around 150 people had to travel to Bristol and stay overnight for a hands-on application which lasted half a day.
Finally, there is the most controversial of the new procedures. Under the old procedure each side called their own expert where necessary. Rules ensured parity in numbers and, at the trial, their evidence was tested by cross-examination and the judge decided whose evidence was preferred.
Under the new system, the parties are to agree before trial on a joint expert. The idea of solicitors for the injured workman and the solicitors for the insurance company amicably agreeing on an expert whose opinion will probably determine the outcome of the case seems a little remote from reality.
Litigators are resourceful and are unlikely to allow, without a fight, some expert to be appointed who is likely to find against their client, and so they will obtain their own expert to advise them as to which expert should be appointed. Then there will have to be a determination as to who should be the anointed expert. No doubt this will be fiercely fought since the outcome of the case may depend on it.
Not only is the procedure bizarre, but it hardly advances the interest of justice, which should be directed towards getting the correct result rather than finding the most expeditious way of disposing of a case.
So the Woolf procedures should be greeted with guarded enthusiasm, but also with considerable reservation and a conviction that substantial amendments will be needed to make them work if justice is to be paramount to speed.
The writer is a former chairman of the General Council of the Bar
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