UK: Justice Speeded Up May Be Justice Denied

The old adage is that ‘Justice delayed is Justice denied’. The idea is quite simple: if the process of Justice moves too slowly, by the time it reaches its subject, Justice has already occurred.

We are experiencing in the Civil Justice system in Britain a radical change. For centuries we have had an adversarial system with the point being made on behalf of each side by advocates who argue in front of a neutral judge intervening only for the purposes of clarification and possibly argument over the law but not to lead the process of examination (in chief, or cross examination). However, with the advent of the civil procedure rules and the Woolf reforms in April 1999, a new approach started to take root. It has now extended into the Tribunal System, and in particular, the Employment Tribunals and in all probability heralds a strong move towards an investigative inquisitorial judicial system and away from the old style adversarial approach.

It was argued that the adversarial system might produce justice of a high order but the expense was too great. It is also true that the adversarial system could be extremely cumbersome and delayed. However, there are dangers in the new system.

Judges and Tribunal chairmen are intervening more and more in the running of cases right up to the point of the hearing and during it. In this way, cases are accelerated and delay is reduced and eliminated in some cases. During hearings, the parties are told that they have so much time for each witness and for their own case and so much time to sum up and if they go over the deadline, there is a sharp cut-off.

Undoubtedly, delay causes damage and increases expense but the changes that are coming in are not invariably beneficial. For example, County Court & High Court Judges are frequently insisting that the evidence is not heard and that the cases be broken down into constituent parts from which there are either preliminary findings which then govern or at least colour the rest of the case or, alternatively, the Judge will make a finding based upon what he perceives to be the best case of say, the weaker party (in his mind), again without hearing evidence. The point is that during the sometimes laborious but sometimes also necessary process of examining the evidence the truth can become clear and the complex inter-relationship of a number of factors, legal and factual, can swing a result. It is usually only in the simpler cases that it is possible and safe to take a bird’s eye view of the facts and the law and determine the case in a summary way.

Both Courts and Tribunals are also truncating the amount of time that advocates are allowed to examine and cross-examine. Tribunals quite often do not permit the parties in chief to read out their own statement. Thus the opportunity for inflection and feeling to be put into evidence has gone. Might it be better if we are going down this route to simply do the job on paper since truncated cross-examination can be a very unsatisfactory process?

Yes, justice is expensive but with the onslaught of the Access to Justice Act and the decimation of what used to be known as Legal Aid and now goes by some peculiar name – but that doesn’t matter because it doesn’t exist much now anyway – there shouldn’t be too much for the government to worry about cost-wise.

Perhaps we are shaping up for the 21^st century and necessary restrictions on the luxury of a full-scale justice system. Nevertheless, when you have a combination of a large number of people disenfranchised because of the withdrawal of Legal Aid and then an unseemly speeding up of cases, in some instances, then there may be some grounds for worry. There is no need for wholesale panic but the debate needs to be started to ensure that justice is preserved.