Citation(2020) 32 SAcLJ 1256
Published date01 December 2020
Date01 December 2020

[T]he process by which a judge arrives at a procedural decision resembles that by which the fire-fighter reaches a decision to move from a dangerous part of a fire. When judges make a decision based on expert intuition, they are not simply doing what they feel like; they are bringing to bear a lifetime of experience and education in legal practice. Such a decision is not uninformed or arbitrary.[2]

1 Justice begins with the assumption that every litigant will have his day in court. This assumption is tested by the question: How many days should he be entitled to? That is a difficult question because the longer one litigant holds the attention of the court, the longer another litigant has to wait his turn, for access to justice is access for all, and the limited resources of the court cannot be hogged by a litigant as he pleases. Justice and Efficiency in Mega-Litigation inquires into the ways in which judges ensure justice between the parties and still achieve a measure of efficiency, especially in the ever-increasing cases of mega-litigation.

2 The question itself suggests that something may have to give, just as the call for freedom finds its echo in the refrain that freedom for the pike is death to the minnows. The concern in this book is the time and resources that are consumed by mega-litigation, which, the author (“AO”) defines by adopting the description given by Sackville J, the trial judge in Seven Network Ltd v News Ltd,3 (better known as “C7”). The learned judge held as follows:4

The case is an example of what is best described as ‘mega-litigation’. By that expression, I mean civil litigation, usually involving multiple and separately represented parties, that consumes many months of court time and generates vast quantities of documentation in paper or electronic form. An invariable characteristic of mega-litigation is that it imposes a very large burden, not only on the parties, but on the court system and, through that system, the community.

3 C7 had two applicants and 20 respondents and was heard in 120 days. Through electronic discovery, 85,653 documents, comprising 589,392 pages, were discovered, and 12,849 documents, comprising 115,586 pages, were admitted into evidence. Sackville J's judgment was 1,173 pages long. But this was by no means the longest or biggest trial. Duke Group Ltd v Pilmer5 took 471 hearing days. AO noted, however, that trials lasting more than 100 days are more common in Australia than in the UK. She interviewed many judges in both countries, and wrote that some English judges attributed their relatively short trial times to the efficiency of their procedures, particularly in the Commercial Court.6

4 The exchange between counsel and the judge in C7 exemplifies how good humour survives in mega-litigation:

Counsel: The worst thing that can happen in this case is that the timetable breaks down.

Judge: The worst thing that can happen is that the judge breaks down.

This exchange was reported in The Sydney Morning Herald on the 104th day of the trial.

5 The concerns regarding mega-litigation are: (a) the cost to efficiency, with public funds going into one single case, and other cases thus being put on the backburner, queuing for their day in court; and (b) that expenses may be prohibitive especially for the poorer parties dragged into a fight between the deep-pocketed.

6 In Chapter 3, AO examines the causes of mega-litigation. First, the bigger the stakes, the bigger the trial. Parties are more willing to spend more time and money when they have much more to gain. Litigants worry about spending $500,000 in legal costs when the claim is for $1m, but are more inclined to spend that amount if they are claiming $1bn. The second factor is the number of parties. With 20 respondents

divided into ten separately represented groups, C7 had to ensure each party's issues were addressed. The third is the number of days that a court might allow the case to drift. The fourth concerns the staggering number of documents that might be involved. And fifth, a mega-litigation usually has complex questions of fact or law, or both, but AO observes that usually, it is the complexity of factual issues rather than legal issues that mark out a case as a mega-litigation.

7 Under the common law adversarial system, the courts periodically review practice and procedure to weed out wasteful procedural posturing, and AO finds that sanctions against such conduct need to be addressed at source, namely that the legal culture of paying a lawyer by the hour often proves a great incentive for cases to drag, giving rise to the observation of Charles Dickens that “The one great principle of English law is to make business for itself”.7

8 Money is not the only reason for the reluctance of counsel to abandon any arguable point – the fear of being sued sometimes drives lawyers into the wasteland, and the judges, to despair. AO warns that although adversarial zeal might be a...

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