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The concept of ‘access to justice’ has wide appeal despite meaning different things to different people. Although it has been defined in various, and sometimes inexplicable, ways depending on the context, the term access to justice conveys several consistent principles of importance to societies, the rule of law and justice systems. Under the rule of law, law stands above all people and all people are equal before it. In this way, access to justice is an aspiration. No person and no institution, including the state, should be above the law. But for all people to be equal before the law there must be equal access to the law. This requires people knowing their rights and entitlements, being aware of processes for remedy or redress, having the ability to access those processes, being able effectively to participate in those processes, and achieving an outcome that is just, in light of the merits of the case and by processes that are conspicuously fair and perceived to be so. Effective access to justice ensures that laws are more than hollow promises of protection for the vulnerable and powerless.
Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access. Lord Diplock in Bremer Vulkan Schiffbau and Maschinenfabrik v South India Shipping Corp.  AC 909, HL, p. 976.
The justification of a legal system and procedures must be one of lesser evils, that legal resolution of disputes is preferable to blood feuds, rampant crime and violence. M. Bayles, ‘Principles for legal procedure’, Law and Philosophy, 5:1 (1986), 33–57, 57.
The first impulse of a rudimentary soul is to do justice by his own hand. Only at the cost of mighty historical efforts has it been possible to supplant in the human soul the idea of self-obtained justice by the idea of justice entrusted to authorities. Eduardo J. Couture, ‘The nature of the judicial process’, Tulane Law Review, 25 (1950), 1–28, 7.
The last fifteen years has been a period of significant change within civil justice systems around the globe and the fundamental reform of English civil justice which was part of that movement is now a decade old. This therefore seems an opportune moment for reflection. In choosing civil justice as my topic for the Hamlyn Lectures 2008, I am straying into territory well marked out by experts such as Sir Jack Jacob, Michael Zander, J.A. Jolowicz, Adrian Zuckerman and, of course, in his own time, Jeremy Bentham. But my ambition in these lectures is to offer a somewhat different perspective on civil justice. I am interested in theoretical questions about the social purpose and function of civil justice (in particular in common law systems) and empirical questions about how the civil justice system works in light of those purposes. My perspective on civil justice is shaped by the experience of nearly three decades spent studying how the civil justice system operates in practice. I have sat in people’s homes talking about civil justice problems and why they do or don’t want to litigate or wish they had or hadn’t.
Few questions are as central to the study of the legal process as that of how legal decisions are made. It is of transcendent practical significance, because a favourable decision is the presumed goal of every litigant. The question also is an essential jurisprudential one, because any theory of the nature of law necessarily embodies a judgment about how law is made.
In this chapter I propose to continue the focus on the social and economic significance of civil justice, but to look more closely at adjudication or judicial determination within that system. This has presented something of a challenge because of the scarcity of UK research on judicial behaviour. While there is scholarly writing on civil procedure and research on legal services and advocacy, there is little written on the role of the judge in civil justice, except as an adjunct to the post-Woolf philosophy of adjudication – which required the judiciary to change their culture, be less passive, roll up their sleeves and get stuck into becoming case managers.
My interest in the judicial role and judicial decision making arises from a number of sources. First, from having observed judges in courts and tribunal hearings during various research projects – often from the perspective of litigants, but also sitting with judges on the other side of the bench or table. This has given me a vivid sense of the expectations, fears and competence of litigants in court. It has also given me an insight into the day-to-day work of judges and, in particular, those below the waterline of the High Court.
My starting point for this chapter is essentially the conclusion of the previous chapter: that the civil justice system has a significant social purpose and that the fundamental challenge for reformers is how to provide a modern, efficient system that delivers just outcomes by means of procedures that are fair and that are perceived to be so by litigants and other court users – a system that delivers justice and enjoys public confidence. Most importantly, the question is how the public purpose of the civil justice system – in supporting social and economic stability – is achieved in a climate of strained resources and when the demands of criminal justice seem to be unstoppable. I argued that we have been presented with two competing narratives about civil justice: that there is not enough access to justice and that there is too much litigation. As far as the government and some sections of the judiciary are concerned, the answer to both arguments seems to be diverting cases away from the courts and into private dispute resolution processes and in particular mediation. This trend is true of policy in relation to family disputes, civil and commercial disputes and, more recently, administrative justice disputes involving citizen and State. In this context I am interested in reflecting on who and what is driving ADR policy, and why.
My focus is principally on the promotion of ADR for non-family civil disputes and, in particular, judicial and government policy on mediation. While my interest in civil justice reform has inevitably led to engagement with ADR policy, I have also developed a good ground-floor feel for what mediation offers and for its limitations as a result of having undertaken a number of evaluations of court-annexed mediation schemes in England over the last decade. These evaluations involved talking to litigants who had chosen to mediate, those who had rejected the opportunity to mediate, those who felt they had been forced to mediate and those who would have liked the opportunity to mediate. I have watched mediations. I have talked to lawyers about mediation and to mediators about mediation.
Having drawn attention to the social and economic importance of civil justice, this chapter considers the surprising coincidence during the past decade of worldwide ‘crises’ in civil justice. It examines the reform programmes put in place around the world – in response to these perceived crises and access to justice concerns – and discusses the interesting disconnection of these reviews and reforms from any empirical understanding about access to justice. The chapter concludes with a discussion of recent comparative evidence about the responsiveness of the civil justice system to the needs of the public and a reflection on the question of how much civil justice we need and how much we can afford to forego in light of the purposes of civil justice.
Civil justice in crisis around the world
If the significance of civil justice to governments around the world were to be judged merely by the number and tonnage of review reports, then clearly it is very significant indeed. The last decade has seen a global explosion of reviews, analyses and reforms of civil justice systems. Although the English civil justice system has been the subject of complaint and report at least since the middle of the nineteenth century, the fundamental review of English civil justice undertaken by Lord Woolf during 1994–6 has to be viewed in that wider context. It was only one of a number of similar reviews and reform programmes that started in California and Australia, were repeated in several Australian states and then seemed to spread around the world to New Zealand, several provinces in Canada, Hong Kong and Scotland. All were apparently undertaken in response to existing or impending crises in civil justice. Indeed, a collection of scholarly papers published in 1999 edited by Adrian Zuckerman was dramatically entitled Civil Justice in Crisis.
My starting and ending point in these lectures has been the belief that the machinery of civil justice sustains social stability and economic growth by providing public processes for resolving civil disputes, for enforcing legal rights and for protecting private and personal rights. I have argued that the civil courts contribute silently to social and economic well-being and that to a certain extent we have had the luxury of taking that for granted. Unlike citizens in other jurisdictions, while our preference may be to stay well away from the courts, their relative accessibility, their historically demanding procedures and incorrupt judiciary have provided a background sense of comfort. They have enabled citizens to feel that they live in an orderly society where, if the worst should happen, their rights could and would be protected through the system of justice.
I have also argued that we are witnessing the downgrading of that civil justice system. The degradation of the courts and starving of resources are symptoms of their declining significance to government. This development can be traced to the interaction and mutual reinforcement of a number of factors including, but not limited to, the following:
escalating government expenditure on criminal prosecution, criminal defence and incarceration – all of which are paid for out of a single justice budget that must accommodate the needs of both criminal and civil justice;
consequent pressure to contain expenditure wherever possible within the justice system;
contradictory criticisms of the civil justice system that it facilitated too many claims and that it was procedurally elaborate and insufficiently accessible;
an increasingly organised and professionalised legal profession successfully enforcing rights and creatively enlarging liabilities – and charging for those services; and
the development of a new profession of mediators competing with the legal profession for its dispute-resolution work.
The civil justice system supports social order and economic activity, but a number of factors over the last decade have created a situation in which the value of civil justice is being undermined and the civil courts are in a state of dilapidation. For the 2008 Hamlyn Lectures, Dame Hazel Genn discusses reforms to civil justice in England and around the world over the last decade in the context of escalating expenditure on criminal justice and vanishing civil trials. In critically assessing the claims and practice of mediation for civil disputes, she questions whether diverting cases out of the public courts and into private dispute resolution promotes access to justice, looks critically at the changed expectations of the judiciary in civil justice and points to the need for a better understanding of how judges 'do justice'.