| 1.1 |
Civil justice is essentially concerned with
the resolution of disputes (including disputes between private parties
and State institutions). The civil justice system consists of much more
than the civil courts. It encompasses all the ways in which people can
legitimately resolve disputes and enforce their rights and the obligations
of others under the law(1). What is crucial is to set the present proposals
in this wider context. |
| 1.2 |
The vast majority of actual and potential
legal disputes do not involve court proceedings. Of those that do, only
the minority (about 1%) reach a trial before a judge. The courts are
nevertheless peculiarly important. They set the framework in which the
rest of the system operates. |
| 1.3 |
Although I have taken the resolution of
private disputes to be its fundamental role, it must be recognised that
a number of wider benefits flow from the existence of an effective civil
justice system. First, it can influence the behaviour of people not
directly involved in legal disputes, so helping to maintain order and
the rule of law; providing the foundations for economic and social activity;
and promoting the performance of particular legal obligations. Secondly,
it serves to clarify the law and to produce precedents that can be applied
more generally. I return to this issue briefly in paragraphs
5.17-19. |
| 1.4 |
I start from the expectation that the demand
for civil justice in its widest sense is growing and is likely to continue
to grow. Justice - by which I mean the satisfactory resolution of disputes
- is part of the service sector of the economy. As the economy matures
and as wealth and income grow, the overall trend will be for people
to want and be willing to pay for more justice(2). Part of this process
is that, as society becomes richer, more rights are created and people
are better equipped and organised to assert them. |
| 1.5 |
The 'supply' of civil justice is, however,
fragmented and confusing. Annex C attempts
to summarise the different sources of help that might be available to
people with problems, and how they might seek to resolve them. But the
system as a whole is poorly mapped. There are few relevant and reliable
statistics. |
| 1.6 |
Everyone suffers because of this lack of
knowledge. Those seeking to use the system certainly do. But so do policy
makers and those who administer justice. We have very little understanding
of the factors that determine demand and supply in either the system
as a whole, or in particular parts of it. One consequence is that it
is much more difficult than it should be to make even minor changes,
without nagging doubts about undesirable effects elsewhere. This has
led to a worrying degree of cynicism about the efficacy of change in
general. |
| 1.7 |
The civil justice system as a whole is not
managed coherently, nor do its individual parts seem to be managed with
efficiency much in mind. There is indeed a view that efficiency might
be incompatible with justice: that it is always desirable and necessary
to take infinite pains in order to achieve the best possible result
in each case. Desirable though this may seem as a principle, it inevitably
comes up against the limitation of available resources. So I have not
been overly concerned with absolute notions. It seems to me self-evident
that there is not an infinite supply of good justice and that diminishing
returns apply here as anywhere else. I have therefore concentrated on
efficiency. I take that to mean getting more out of a given level of
resources, or the same amount at lower cost. |
| 1.8 |
I have also asked myself whether the reforms
I am considering will be efficient in their own right; and, further,
whether they will contribute to improving the efficiency of the whole
system of civil justice. This means that cases should not be artificially
attracted from another part of the system where they would have been
processed in a more cost-effective manner (i.e. at a cost proportionate
to the issue at stake). |
| 1.9 |
This requires that the system be tiered
in a logical and comprehensible manner and that disputes find the right
place in it. The present civil justice arrangements are so diverse that
it is unlikely that this result can be achieved by purely administrative
means. There also needs to be a set of signals and incentives which
push cases in the right direction and contribute to the efficient settlement
of disputes when they arrive. There need to be pressures to allocate
costs correctly, contain costs, improve quality, increase output and
share risk equitably. |
| 1.10 |
The sharing of risk deserves particular
comment. The resolution of a dispute is inevitably a risky business.
Those involved need to have as much knowledge as possible about the
risks they are taking - the likely costs and benefits, the probability
of success, and the way these change at different stages in the case.
It is in my view the responsibility of the professionals in the system
- especially the lawyers - to give this advice explicitly. The more
they share the financial consequences of this judgement, the more accurate
it is likely to be. |
| 1.11 |
Lord Woolf was concerned with managing the
business of the courts more efficiently. On the whole he took the nature
of their business as read, without questioning whether some types of
case would be better handled in other ways. The reforms he has proposed
are intended to reduce cost and delay in litigation. If they succeed,
the result will be a greater throughput of cases through the courts
at a reduced unit cost. This will be an improvement, provided undesirable
new costs are not created elsewhere in the system which outweigh the
improvements in the efficiency of the courts. |
| 1.12 |
The role of legal aid within the civil justice
system is to ensure that the less well-off have access to the system
on a broadly equal basis to everyone else. This is more than a matter
of securing benefits for the individuals involved. The credibility and,
ultimately, the legitimacy of the civil justice system will be diminished
if access to it is unequal in the sense that particular groups, particularly
the poor, are seen to be systematically excluded. The system could not
then achieve the wider goals described in paragraph 1.3. |
| 1.13 |
Like civil justice itself, however, the
objective of legal aid cannot be viewed in absolute terms. This is because
resources are scarce and there are many alternative uses to consider.
So it is important that the legal aid scheme obtains value for money
and that the resources devoted to it are carefully targeted. It should
be subject to the same kind of efficiency criteria as the rest of the
system. So far as possible, it should be structured in a way that does
not destroy or obscure the signals and incentives described in paragraph
1.9. |
| 1.14 |
The role of Government should be threefold:
-
to provide just and efficient court services. That is the focus
of the civil justice reforms discussed in chapter
2. I also make further observations in chapter
5;
-
to ensure that mechanisms are in place to provide cost-effective
access to the civil justice system for people who could not otherwise
afford it. Chapter 3 discusses the proposed
reform of the current legal aid scheme, while chapter
5 considers its further development into a Community Legal
Service; and
-
to facilitate the development of logical and comprehensible structures
and pressures for efficiency in all parts of the system, both
public and privately managed. chapter 5 suggests
some ways in which policy may be developed in this direction.
|
| 1.15 |
I have met concern that increasing efficiency
and improving access to justice may result in a more litigious society.
This is seen as undesirable in overall policy and economic terms. Provided
that we focus on the efficiency of the whole system, not just isolated
parts of it, I do not consider this to be a valid concern. It certainly
does not amount to an argument for keeping costs artificially high.
|
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