Division in the courts – small claims this way, others that

An obvious major issue for those involved in digitalising the courts is whether innovation might be more in the interest of some involved in litigation at the expense of others. The senior civil judge in England and Wales, Master of the Rolls Sir Geoffrey Vos, has just walked into a mild (his critics were, after all, generally senior lawyers) twitter storm for his views expressed in a lecture last week. What he said was: ‘Every justice system has to cater for the types of people and entity who are entitled to access it. It is important to understand that justice is no longer a binary process … For small claims, the parties often want a swift cost-free resolution, without much caring whether the outcome is robust and dependable. In large disputes and some other types of claim, the parameters will be different, and the parties may be prepared to invest time and money in achieving a more just and perhaps objectively correct solution.’

Sir Geoffrey is a lawyers’ lawyer – a former Commercial Court silk of high repute. You can see and hear him talking at at Harvard Law School presentation on the high judicial role he was then about to take up. He pretty certainly knows who the Beatles are (though you might think that he could struggle with, say, Megan Three Stallion). He does not conform to the worst stereotypes of the British senior judiciary. But you could not hear him talk for thirty seconds without guessing that he was a lawyer and, given his evident authority, a senior judge. He talks with precision and care. His prior experience of the courts has been largely shaped by his commercial practice – though he was joint head of a chambers that distinguished itself in its coverage of human rights cases.

Eloquent though he be, Sir Geoffrey himself might find it difficult, on reflection, to defend his formulation on the needs of small claims litigants that they want ‘swift cost-free resolution, without much caring whether the outcome is robust and dependable.’ This is surely logically dubious, politically questionable and, in my experience, factually inaccurate. Small claims and tribunal litigants more often want justice and are motivated by a deep sense of hurt (whether they are right or wrong) which has led them to overcome all the existing significant barriers to taking a case to court. They feel themselves wronged and they want it put right. In Sir Geoffrey’s world, such litigants want speed and cheapness over reliability, predictability and dependability. That is, frankly, nonsense on stilts – as Jeremy Bentham claimed of the theory of natural rights.

Sir Geoffrey’s speech is short on three particular perspectives. 

The first is history. The document which kicked off the domestic courts’ headlong lurch into digital was a joint report of the judiciary and the Ministry of Justice on Transforming our Justice System. No mention there of differential objectives within the court system. It leads off with a heady statement of principle: ‘This will be a justice system with people’s needs and expectations at its heart. The transformation of the courts and tribunals across the country will be based on three core principles that build on its established strengths: Just; Proportionate; Accessible.’ The concepts of proportionality and accessibility take up issues from earlier foundation reports by Lord Woolf. But the one value that clashes with Sir Geoffrey’s formulation is ‘just’. He pays it no heed. 

The second is statistics. Sir Geoffrey includes a few in his speech but not many – ‘almost 300,000 [Online Money Claims and Damages Claims Online] have been made online’, ’60 million small claims [are] brought every year on eBay’. But the title of his speech is ‘The Future for Dispute Resolution: Horizon Scanning’. Where are the facts and the inferences from those facts? One of the major trends of litigation – extremely important for a Bar facing shrinking income from public funds – is overseas litigation. Look at the latest report of the Commercial Court – a body which Sir Geoffrey once bestride like a Colossus. The really striking element is the increasing domination of international litigation. This made up no less than 74 per cent of the court’s caseload. This is not without a degree of controversy. London has become the litigation choice of a number of the hyper wealthy for which the case of Berezovsky v Abramovich provides, in the current time particularly, a somewhat unsavoury prototype. Is this domination of the courts desirable? Should it be encouraged? What risks does it bring? Is the rush for the US dollar and (formerly) the  Russian rouble distorting our domestic justice structure?

Third, Sir Geoffrey speculates on future trends in an interesting way that merits further attention but without any indication that research or data might be helpful. And, indeed, without any significant reference to what is happening in other comparable jurisdictions such as those in the US. Of course, he will be hampered in making reference to research and data by the relative lack of it in relation to his own courts. What is the balance in volume and cost of various types of litigation? Has the closure of physical courts impeded self represented litigants more than lawyers and corporate bodies? What changes are occurring in litigation patterns? Is it true that a small but significant number of small court cases relate to disputes about building repair? They typify the sort of case where litigants would want a court to give a just, proportionate and accessible response. Not some quick, off the cuff assessments. If we prioritise swift results, we could (to mix analogies) sit under a banyan tree and ask Solomon.

Come on, Sir Geoffrey. The Ministry of Justice may just want to deliver the savings it was promised by the court modernisation programme. And to proclaim victory. But, the judiciary stand for nothing if not justice.  Equal Justice – as written above the doors of the US Supreme Court –  for all. Let’s scan the horizon and see how that is doing.

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