Citation(2017) 29 SAcLJ 1
Published date01 December 2017
Date01 December 2017


I. Introduction

1 It is a great privilege and honour to have been invited to deliver the 2016 Academy of Law Lecture and to follow in the footsteps of so many distinguished judges.

2 There is a view that procedure is not of intrinsic interest; that it is unimportant when compared with substantive law. That was my view when I finished reading law at Cambridge and, a few months later, qualified as a barrister; hence my knowledge of procedure was virtually nil. However, at the University of Chicago, where I went immediately after, it was very different. First year law students there had to study civil procedure, taught in 1969 through a very tough application of the Socratic method by a great procedural scholar, Professor Geoffrey Hazard. It was the view of the law school that it was as necessary to have a grounding in procedure as it was in the more usual subjects of constitutional law, contract and tort. That view was plainly right.

3 Procedure, in my view, is as central to the delivery of justice as is the content of substantive law. It affects access to justice, the cost of obtaining justice, the time proceedings take, their complexity, the enforceability of judgments, jurisdiction and incidental matters, such as the employment of lawyers. Its reform is essential to the challenge faced nationally and internationally by the way our world has changed, and is changing, through the technological revolution. Procedural reform is at the core of the court reform programme on which we have embarked recently in England and Wales.

4 The need to reform procedure is not new, as procedure always has a tendency towards ossification. Several clauses of Magna Carta, for example, were directed at procedural issues. Thereafter, echoing Magna Carta, whenever the system ossified beyond the point of public endurance, there were successive attempts at procedural reform focussing on the elimination of three things:

  1. (a) unnecessary delay;

  2. (b) excessive cost; and

  3. (c) excessive procedural complexity.

5 These three have always been pursued as the means to an end: to enable courts better to secure, as was said almost a century ago, “a just and speedy decision upon the merits according to the principles of substantive law, at the lowest practicable cost”.1

6 However, enthusiasm for procedural reform, particularly radical reform, has never been easy to muster, partly because of the traditional view of its relative lack of importance and its unexciting nature and partly because of an innately conservative approach to procedure. A story told in 1935, three years before the US Federal Rules of Civil Procedure were promulgated, illustrates the latter. The principal draftsman of the Rules, Professor Charles Clark (subsequently a very distinguished US appellate judge), posed a question to demonstrate the challenge he faced when fashioning the draft Rules: Why do birds flying across the Mediterranean Sea take the longest route across Italy and the largest expanse of the sea rather than the shortest one? The answer he gave was simple: because when birds originally started flying from North Africa to Europe the present route was the shortest route. Time and geology had changed that, but the birds carried on each year just as they always had.2 For migrating birds so for lawyers “habit has a tendency to become our master”.3 As he went on to say:4

So much of our legal thinking, particularly in the field of procedure – properly only the process or machinery for getting court work done efficiently and effectively – is dominated by reasons valid when trial by jury was supplanting compurgation and the ordeal, or the king's grace was being sought on principles of equity to ameliorate the severity of ancient law … it is definitely disturbing to find the habits of our ancestors, sensible in the light of their conditions, made into hard and final rules of law.

7 Many things have changed since 1935. It might reasonably be said that our approach to the radical reform of procedure is not one of them. This is not for want of trying. A study of procedural reform across the world would fill very many weighty volumes. Those reforms have generally had a singular aim – to improve the court's ability to fulfil its constitutional role in the three ways to which I have referred.

8 However, more recently, particularly in many common law jurisdictions, more radical reform of procedure is being driven forward by five further factors:

(a) The need for a rationed approach to procedure. Rationed because of the acceptance that the State's resources are limited and that individual litigants, though entitled to access to justice, have no right to an unlimited claim upon them in the pursuit of justice.

(b) The need for a measured approach to procedure because those limited resources must be distributed equitably across all litigants according to the nature of their claims. Rationed and measured because, if not, access to justice becomes arbitrary and inequitable, contrary to the need to secure within a democracy “equal justice to all”.5 This change has meant that the achievement of decisions on the merits has had to be balanced against, and limited by, the achievement of a fair and accessible process for all those who need to access the courts,6 particularly access without the need for lawyers where their cost cannot be justified by the sums in issue.

(c) The need to use technology in the most effective manner possible. If States are to secure effective justice systems – whether they are civil, family, administrative or criminal justice systems – in an increasingly technological age, they will need to consider: (i) how best to strike the right balance between uniform processes across each of their justice systems and the need to match procedure to the type and needs of the case; (ii) what factors should properly shape their procedures; and (iii) how to effect the necessary cultural change

to ensure that reforms meet their purpose rather than undermine it.

(d) The need to fashion technology to hasten the trend of convergence of procedural law on a national level.

(e) The need to promote convergence on an international level. As our national substantive laws are becoming ever closer in a number of specific areas related to international business, there is an increasing need for our national procedural systems to be brought closer together also. Process cannot lag behind substantive law. On the contrary, if we are to “keep the tools of justice bright”,7 as we must, process must develop to meet today's challenges. Such development is as important internationally as it is nationally. It is because, as was noted in 2004 and is all the more pertinent today:8

[T]he divergent nature of procedural law in the different judicial systems throughout the world means businesses face extra costs and greater uncertainty when engaging in domestic litigation in a foreign jurisdiction.

9 As Professor Clark's story illustrates, breaking from the past is not easy. However, it is no longer an option to take any other course than radical reform. Simply because we have a disclosure process inherited from the old equity court does not mean that we should maintain it unthinkingly today. We need to approach matters with an open mind. We will need to cut the cloth of our procedure to fit today's disputes – whether they be business or consumer, national or international. Success will depend on the way the Judiciary approaches the task and the way in which the changes are made. It will also require a change of litigation cultures, which can be as much creatures of habit as rules and procedures.

II. The potential of technology and the digital revolution

10 My starting point must be technology and digitalisation – it has in part impelled the need for radical reform and provides the potential for a solution. In a lecture given in June 2015, Lord Justice Stephen Richards,9 the then de facto chairman of the Civil Procedure Rules Committee, explained why in England and Wales civil procedure had, despite attempts at reform, continued to increase in complexity; the White Book had expanded from 2,400 to 3,200 pages in the past

15 years. He suggested that the remedy lay in an approach to procedure based on digitalisation. He was plainly right. Procedural reform must be premised on digital technology. In England and Wales, Sir Michael Briggs has just recommended the creation of a standalone Online Court.10 This is being taken forward, as an aspect of wider plans to fully digitalise procedure.11 We must seize the opportunities.

11 First, and by far the most important, process-mapping of relatively straightforward claims in civil, family and administrative jurisdictions12 has demonstrated what ought to have been perceived long before – that the basic procedure for all cases has fundamental common characteristics. Although we give the processes and stages different names and embody them in different procedural regimes, they are essentially the same; almost without exception, each type of claim needs a process to start it, a response by the opposing party, case management and an orderly decision-making process. Where expert evidence is needed, the approach is essentially the same whatever the subject matter. The aim must therefore be to design one basic IT system to underpin a common procedural system to cover the different civil, family and administrative law jurisdictions, and possibly the criminal jurisdiction as well. Apart from immense savings on cost, a common basic procedural system based on a single IT system also provides for much easier deployment of judges and court staff between the different jurisdictions.

12 There are many other opportunities. For example, technology will enable the marked simplification of...

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