To a Simpler Judiciary

Forum to discuss issues pertaining to the organisation and operations of the judiciary.

Moderator: SC Moderators

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

[quote="Publius Crabgrass":2gso19cq]In the interest of fairness, I should add that advocates of the "English rule" cite American litigiousness, and argue that the English rule discourages frivolous litigation. Again, there are two sides to this coin, but I think the coin should be flipped by our elected representatives and not by the unelected judiciary.[/quote:2gso19cq]

You realise, don't you, that the Judiciary Act was designed to allow the elected legislature to pass Acts which over-ride the procedures issued by the Chief Judge so that if, after thorough debate, it was decided that the American Rule on costs was preferable, the legislature could simply pass an Act stipulating that the costs of the successful party in any proceedings shall not be recoverable from the unsuccessful party, unless... (for example, the case was entirely without merit, etc.), and that would be the rule that prevailed?

Incidentally, the "American rule" is used in Employment Tribunals in England and Wales - the rule is the reason for the existence of a a number of legal charities, including one of which I am an active member, which exist to provide [i:2gso19cq]pro bono[/i:2gso19cq] representation to allegedly wronged employees who cannot afford a lawyer because they know that, practically however strong thier cases, they will never be able to recover the substantial legal fees from the usually wealthier other side if they win. You might also be interested to note that employment tribunals were established in the 1970s to deal with what was then the new unfair dismissal law, as a supposedly cheaper and simpler form of civil proceedings than the County Court. They are composed of two lay members, with a legally qualified chair, have sitting-down advocacy, and relatively informal rules of procedure. The idea was that they would be so "simple" that litigants would never need to have lawyers. The reality is very different. Informal procedures make it less likely that a party will make a purely technical blunder, but employment law itself, and the very technique of disputed-fact advocacy that is central to the process of [i:2gso19cq]any[/i:2gso19cq] kind of court system, are so complicated and specialised that, in all but the most unusually straightforward of cases, litigants need a lawyer to have a fair chance, which is why charities, such as the Free Representation Unit, and other like it, were set up.

Ashcroft Burnham

Where reason fails, all hope is lost.
Publius Crabgrass
Passionate Protagonist
Passionate Protagonist
Posts: 143
Joined: Wed Sep 27, 2006 5:12 pm

Post by Publius Crabgrass »

[quote="Ashcroft Burnham":iovepf46]
You realise, don't you, that the Judiciary Act was designed to allow the elected legislature to pass Acts which over-ride the procedures issued by the Chief Judge so that if, after thorough debate, it was decided that the American Rule on costs was preferable, the legislature could simply pass an Act stipulating that the costs of the successful party in any proceedings shall not be recoverable from the unsuccessful party, unless... (for example, the case was entirely without merit, etc.), and that would be the rule that prevailed?
[/quote:iovepf46]
True, under the current system, the legislature could override your decision to impose the English rule. My point is that it is preferrable to have the legislature make such decisions [i:iovepf46]in the first instance[/i:iovepf46].

[quote:iovepf46]Incidentally, the "American rule" is used in Employment Tribunals in England and Wales - the rule is the reason for the existence of a a number of legal charities, including one of which I am an active member, which exist to provide [i:iovepf46]pro bono[/i:iovepf46] representation to allegedly wronged employees who cannot afford a lawyer because they know that, practically however strong thier cases, they will never be able to recover the substantial legal fees from the usually wealthier other side if they win. You might also be interested to note that employment tribunals were established in the 1970s to deal with what was then the new unfair dismissal law, as a supposedly cheaper and simpler form of civil proceedings than the County Court. They are composed of two lay members, with a legally qualified chair, have sitting-down advocacy, and relatively informal rules of procedure. The idea was that they would be so "simple" that litigants would never need to have lawyers. The reality is very different. Informal procedures make it less likely that a party will make a purely technical blunder, but employment law itself, and the very technique of disputed-fact advocacy that is central to the process of [i:iovepf46]any[/i:iovepf46] kind of court system, are so complicated and specialised that, in all but the most unusually straightforward of cases, litigants need a lawyer to have a fair chance, which is why charities, such as the Free Representation Unit, and other like it, were set up.[/quote:iovepf46]

I have a somewhat different view of employment matters - we have administrative hearings in workers compensation (on-the-job injuries) and many other matters, involving "disputed-fact" advocacy. These hearings usually move fairly smoothly, and without detailed rules of procedure or evidence, where lawyers are not necessary. Some administrative proceeedings allow for appeal on a trial [i:iovepf46]de novo[/i:iovepf46] ("tried over again", for non-lawyer readers) basis to a court, while in other instances the appeal is only on issues of law. But thanks for your view of the Employment Tribunals experience. I read your statement to acknowledge the view that our new legal system may well become one of the "any kind of court system" in which most "litigants need a lawyer to have a fair chance". I suspect that is why there has been such a hue and cry about it!

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

[quote="Publius Crabgrass":21tbuzfv] I read your statement to acknowledge the view that our new legal system may well become one of the "any kind of court system" in which most "litigants need a lawyer to have a fair chance". I suspect that is why there has been such a hue and cry about it![/quote:21tbuzfv]

The point is that [i:21tbuzfv]any[/i:21tbuzfv] kind of court system in which advocacy of any kind is necessary gives huge benefits to parties with professional legal advisors.

Ashcroft Burnham

Where reason fails, all hope is lost.
Post Reply

Return to “Judiciary Discussion”