Civil procedure – the column

Thanks to Ken Parish for helpful comments and corrections.

The high price of justice

Nazi Sex Romp!

Now Ive got your attention Im going to talk about legal procedure. After the lecture well return to the sex romp.

Attorney General Robert McClelland has joined the chorus of condemnation seeking better access to our courts. In cases both large and small, the cost of litigation is often hugely, “absurdly” to quote the Attorney “totally disproportionate to the value of the claim.”

No-one’s solved the problem. Anywhere. We haven’t solved it for the same reasons we’ve not tamed over-regulation. The devil’s in the detail. And as life gets more complex and computerised, the detail just keeps growing.

In our system the opposing sides – generally their lawyers – construct the case by following the rules of a procedural game, each trying to get the upper hand. The judges role is to adjudicate this contest; and only indirectly to find the truth. This provides cover for delay, denial and obfuscation.

As High Court Justice Hayne recently put it “Usually only one side . . . will be anxious to isolate the determinative issue in the case and have that decided quickly. The other side will have powerful reasons to avoid that being done.”

The biggest shakeup of the system occurred where it all began. In the late 1990s, English reforms stemming from Lord Woolf’s comprehensive report introduced much stronger disciplines on parties to solve or narrow disputes before trial and greater judicial powers to manage cases.

The reforms succeeded in clearing the backlog in the courts but failed to the extent they’ve simply pushed costs back to earlier pre-trial interlocutory proceedings.

In Australia too, despite bold, Woolf-like legislative declarations that the overriding purpose of civil procedure is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (NSW Civil Proceedings Act 2005), huge cultural and structural problems remain. Judges are often uncomfortable managing cases. And as Justice Sackville has argued, sufficiently vigorous refusal to indulge a litigant in putting their opponent to the test on every minor point could lead a case to miscarry on appeal for bias.

Under the leadership of Chief Justice Spigleman New South Wales has led on civil procedure sufficiently to become business jurisdiction of choice. But its no legal nirvana. Spigleman complained recently that the flag fall for discovery of documents for a significant commercial dispute is often $2 million.

To match or better NSWs legal competitiveness, the Victorian Law Reform Commission has been hard at it, recently publishing a sensible and comprehensive 700 plus page report, its 177 recommendations running over 20,000 words.

It highlights the poverty of data on which to make sound decisions. But its too much the creature of the legal culture its trying to tackle. Its proposed Civil Justice Council which would carry much of the future agenda is a specialist stakeholder body, an unlikely driver of substantial micro-economic reform. And theres no recommendation to experiment perhaps in some specialised court with a truly inquisitorial process like Europe’s civil law system or our own Royal Commissions where the judge is chief investigator, not the umpire between legal opponents.

And where UK courts now charge for their time with discretion to publicly fund to avoid hardship, the Victorian report shies away from anything so bold. I hope some enterprising State or Federal Treasurer understands what easy pickings this could make for their next razor gang.

To quote one commentator reviewing the Woolf reforms, delivering true proportionality “seems unlikely without a much more fundamental reform, such as moving away from the adversarial system”.

In fact civil law systems have problems too so theyre no panacea on their own. We need to search for a felicitous hybrid that melds the best of both systems a subject for another column.

Meanwhile back in England, pity poor Max Mosley having a quiet S&M night with five friendly prostitutes. (He’s the high profile son of Oswald Mosley, British Fascist leader and Diana Mitford. Hitler attended their 1936 wedding.) Max was secretly videotaped by News of the World. He won £60,000 damages for invasion of privacy.

But even though the basic evidence the tape and newspaper article was already public, the costs of both sides still came to fourteen times the damages or nearly £1 million.

So much for proportionality in post-Woolf England.

And so much for your rights to privacy if you don’t have a million odd to wager.

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16 Responses to Civil procedure – the column

  1. Jc says:

    What if the money isn’t the issue though and a person wants justice like Mosley felt he wanted.

    I have a dispute with a builder going on at the moment. He lied to me as to when he was going to do the insurance repair and I placed the whole thing in the hands of a lawyer with the instruction that I wanted it to cost the other side the max within the limits of the law (as he deserves it).

    The cost of consultants from builders to engineers reports is running up and I will able to make full claim on those according to the lawyer. Sometimes Ken, the money isn’t the issue.

  2. You’re a great communicator Nicolas. I enjoyed that article.

  3. FDB says:

    “The cost of consultants from builders to engineers reports is running up and I will able to make full claim on those according to the lawyer. Sometimes Ken, the money isnt the issue.”

    So are you saying you won’t make full claim on all your costs, or does the above make no sense whatsoever?

    Nice piece anyway Nic. The issue of bias must be the big sticking point – when the judge is merely adjudicator they will be seen as more passive, and any increase in active judicial involvement invites suspicion of interest.

    What has the continental situation been in terms of appeals on that basis?

  4. FDB, I will try to write a little more on the question you ask in part two.

  5. FDB says:

    Excellent. That will save me doing any research of my own.

  6. No – please do some for me FDB!

  7. FDB says:

    Something’s flaked out in my journal database account just today, so I’m having a bastard of a time getting actual work done! I reckon wikipedia’s the best I could do… as apparently is the case with half of my students!

  8. pedro says:

    In Qld the problem of cheap access to justice was to be solved with the Commercial and Consumer Tribunal, in which there are (almost) no lawyers and no rules of evidence. I suppose it is cheap, but the the quality of the decision making is really really bad, and the time involved is probably not much different from litigation.

    Mind you, that’s just the annecdotal complaints of a lawyer, but I don’t know if any serious research has been done.

  9. Bingo Bango Boingo says:

    pedro, Victoria has a similar system whereby a complaint can be brought and heard without lawyers if the claim is for less than $10k. $35 for the filing fee, no formal written defence, no discovery process at all, decisions on the spot in easy cases (no more than 6 weeks otherwise) and no possibility of a costs award against the plaintiff. If you want to go for more than $10k you can, but then the other side is entitled to bring lawyers along (and from memory there is still no possibility of a costs award). No idea about the quality of decisions, but apparently they go for a fault split most of the time.


  10. Bingo Bango Boingo says:

    When I say “on the spot” I mean “at the hearing”.


  11. pedro says:

    BBB, our CCT is given jurisdiction over a range of areas and is not just a claim amount basis. Here is the list.
    Architects Act 2002
    Building Act 1975
    Building and Construction Industry Payments Act 2004
    Body Corporate and Community Management Act 1997
    Classification of Computer Games and Images Act 1995
    Classification of Films Act 1991
    Classification of Publications Act 1991
    Domestic Building Contracts Act 2000
    Disability Services Act 2006
    Liquor Act 1992
    Lotteries Act 1997
    Manufactured Homes (Residential Parks) Act 2003
    Pest Management Act 2001
    Plumbing and Drainage Act 2002
    Professional Engineers Act 2002
    Property Agents and Motor Dealers Act 2000
    Queensland Building Services Authority Act 1991
    Residential Services (Accreditation) Act 2002
    Retirement Villages Act 1999
    Tourism Services Act 2003
    Wine Industry Act 1994

    In many cases the only appeal is on questions of law, which means that the findings of fact are set in a tribunal without rules of evidence applying.

  12. tim watson says:

    One not particularly original idea would be taking torts outside of the legal system through an injury compensation scheme like that operating in New Zealand, or the transport accidents insurance scheme in Victoria.

    Another thought would be a more active application of the inherent jurisidiction of the court to award costs against practitioners who deliberately waste time and engage in procedural games.

    Get out the stick!

  13. pete m says:

    Oh God, please no comp scheme like NZ – currently underfunded in the billions, or Victoria, where a govt department runs the medicos around. Do you really want that?

    While I agree lawyers can cop the blame for many issues, I have personally found it is the client who causes most dramas. They don’t give you documents, or give you silly instructions, or ignore advice, or tell lies etc.

    The CCT in Qld can easily get bogged down in detail – seen it too often. The worst decisions I have seen have been made by tribunals where no lawyers are around. And it isn’t just blame splitting. I have had clients go along with very good cases and come away with a loss, which leaves you scratching your head.

    You get the justice you pay for. (I mean that as a community, and not necessarily individually).

  14. Pingback: skepticlawyer » Making litigation less expensive

  15. Niall says:

    seems to me to be a continuance of the Golden Rule. He who has the gold……

  16. Pingback: skepticlawyer » Has the time come for the common law to be scrapped?

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