According to The Times the UK government are considering to turn the courts in England and Wales into “a commercial enterprise, paying its way and freed from Treasury control”, and that “funding for the courts would be generated by bigger fees from wealthy litigants and private sector investment, with hedge funds encouraged to invest by an attractive rate of return”.
It is a known fact that litigation in the UK is expensive, slow and uncertain, and attempts to reform it are not new, but so far they have not had much success. Will this proposal cure the court system from its “malaise”?
A private business seeks to maximize the rate of return for its investors by maximizing the profit and turnover and minimizing the costs. And in conditions of a natural market competition it seeks to achieve that by providing better services at lower costs.
The court system is a monopoly of government, so there will be no competition. And this will lead to growing costs and reduction in the quality of service.
But administration of justice, which is the purpose of the courts, is the most basic function of government, which should be available to all people regardless of their wealth or poverty in equal measure. By turning the administration of justice into a profit motivated activity the government will be failing in its most basic duties and creating a private monopoly incapable of providing administration of justice for all the subjects of the Realm in equal measure.
But why is the present system expensive, slow and unpredictable? Could it be improved rather than effectively destroying it by “privatising”?
The main reason for the present state of the system are:
The origins of the Oral Court Hearings go back to the times when very few people could read and write and the only way of communication between people was spoken word. In those days laws were simple and few, and an oral hearing before a judge was the only practical possibility of delivering justice.
Oral hearings, however, are a very expensive, inefficient and error prone way of considering legal cases. A judge has to give a decision on the basis of patchy, imprecise, and often false and still more often irrelevant to the case oral representations. Hearings are often interrupted by emotional outbursts and legal arguments are lead astray by irrelevance and platitudes. It is not uncommon for oral statements to be misheard, misinterpreted and misunderstood, which leads to further waste of time or even to wrong decisions and subsequent appeals. Most hearings run out of the allocated time. And it is common for the parties and their lawyers having come to the court hearing at the appointed date and time to spend a day in the waiting room, and then to have to come again on another day, because the previous cases have run out of the allocated time.
But, if in the past oral hearing were the only way available, today most cases can be resolved by consideration of written, or electronic submissions, as face‐to‐face oral examinations by judges, court officers or lawyers for the opposite side are of benefit only in some cases, but in most cases are unnecessary.
Reducing court appearances of the parties and their lawyers only to those cases where such appearances are necessary for the case, will result in substantial reduction of litigation costs and will make litigation more efficient and less error prone.
The British Legal System uses “adversarial” litigation procedure. While to many people the word adversarial is suggestive of “hostile” and opposite of “friendly”, the technical legal meaning of this word is the opposite of “investigatorial” and suggestive of “oppositional”, with reference to the “opposite sides of the case”.
In an “investigatorial” litigation system the court investigates the case and makes its decision on the basis of that investigation. In an “adversarial” system it is the parties who present the case before the court, and the court makes its decision on the basis of these presentations.
The essence of the adversarial system is a logical argument between the parties, in which the party submitting the case (“plaint”) to the court (“the plaintiff”) is required to prove by evidence and logical reasoning that its case is right, while the party against whom the case is presented (“the defendant”) is given opportunity to refute the plaintiff's assertions, thus showing that either his assertions are false, or that they do not prove that his claim is right.
To work successfully the adversarial system has some basic rules and assumptions, the main of which being the “burden of proof”, and the “standard of proof”. Without strict applications of these basic rules and assumptions, the system loses its logical structure and turns into a common unstructured argument, where the parties exchange accusations and counter accusations, saying anything “bad” about their opponents, and denying anything which seems to them to “go against them”, and the judge is left with the task of resolving the argument using his personal informal judgement, and the adversarial litigation system turns into a “judge‐moderated quarrel”. And this makes the system unpredictable and leads to series of appeals, which are finally decided not on the merits of a case, but on the willingness of the parties to risk having to pay further costs, which often exceed the amounts in dispute, and on the financial resources, available to the litigants.
And this is precisely what happens in the British courts today. The logical structure of the adversarial litigation procedure has fallen into disuse — no judges or litigation lawyers make use of the basic principles of the adversarial litigation.
Restoring and further strengthening the logic of the litigation procedure by strict adherence to the principles of the burden and standard of proof would result in (1) reduction of the number of cases accepted by the courts, (2) faster resolution of the accepted cases by the courts, (3) reduction of appeals. All of which result in a massive reduction in the cost of litigation and of wrong judicial decisions.
As an example of how use of the principle of the “standard of proof” could have prevented a series of miscarriages of justice, we shall consider the “Cot Deaths Scandal”, which was a series of cases where some women were found guilty of killing their babies, but later it was found that the medical expert on whose evidence the convictions were based was not reliable, and the women were released from jail.
The evidence given by the medical expert was that in the majority of cases cot deaths are the result of the mothers killing their babies. And on this basis the juries had given the verdict of guilty. Later it was argued that the evidence given by the expert was not reliable and the verdicts were reversed.
But the medical expert was a medical expert, not a litigation expert, it was for the judge to direct the jury on which evidence is acceptable and which is not.
These were criminal cases, and in criminal cases the standard of proof is beyond reasonable doubt.
The statement by the medical expert was that “in the majority of cases cot deaths are the result of killing”, but this is equivalent to saying that in the minority of cases cot deaths are not the result of killing.
And this means, that even, if the statement made by the expert was true, it would still not amount to sufficient evidence that every cot death is the result of killing, because there was a possibility that the accused women were part of the minority where cot deaths are not the result of killing.
To be accepted as valid evidence, the expert statement had to be that a cot death cannot occur except as a result of killing, that is, 100% of cot deaths are killings — 99.99% would not have been enough.
And, if the evidence does not meet the required standard of proof, then it becomes irrelevant whether it is true or false, or whether the expert is reliable or not. Statistics, reliable or not, cannot be used as evidence in criminal proceedings. The proof should relate specifically to the accused not to a statistical group, to which he might or might not belong.
The miscarriages of justice were due to failure of the judges to apply one of the basic principles of the adversarial procedure — the burden of proof.
Had the judges given the correct directions to the juries on the required standard of proof, the reliability or non‐reliability of the medical expert would have been irrelevant.
We used the above cases because they were a publicly known scandal, but many cases big or small would not have even been accepted at the application stage, and the cases that would have been accepted by the courts would have been resolved much faster and cheaper and would have resulted in the right decisions, thus preventing appeals, or miscarriages of justice — and this if the logic of the Adversarial Procedure had been correctly used by the courts.
Yes, the British Legal System does need a drastic reform to enable it successfully fulfill its purpose, but turning it into a profit driven private monopoly will not cure it from its ills, but would completely destroy it.
But, then, maybe this is what the politicians want — a system that would yield money to the Treasury, while delivering politically convenient judicial decisions? At last the politicians will be able to do what they please without being restricted by the courts!