Civil Justice and Its Significance - Essay Example

LAW Law What case is to be made for moving away from the adversarial system of civil justice and should alternative forms of dispute resolution be promoted to support any such changes Adversarial system can be defined as a system of adjudication such as the existing court system in the UK where the parties are given the primary responsibility of presenting all aspects of their case. It is a term used in opposition to the inquisitorial system which is an imprecise title given to the process of the European system which applies particularly to the criminal cases.1 That the opposing has the capability of misleading as there is a degree of commonality and convergence as presented by the two systems. It is however misguided to refer to the two systems as static since they have essential characteristics incapable of change. The European court system varies from country to country and mostly emphasis on procedural fairness according the parties more opportunity to present their cases than in the past. By moving to case management, the Adversarial system starts to resemble the inquisitorial system by expecting the judge to take more control over the litigation process. However, the defining criterion that differentiates the two systems is the much emphasis placed on the procedural fairness characteristic of the adversarial system.2 Civil justice and its significance Civil justice is a public virtue which serves more than just private interests. Civil courts play an important role to the well being of the economy and social life of the people. It is civil justice that allows people to live in an orderly society where rights and protections are valued. In such societies where there is rule of law, the courts provide the citizens defence against government arbitrary action.3 Courts promote social order and facilitate peaceful dispute resolution methods as well as communicating and reinforcing civil values and norms. Significantly, civil courts support economic activity as law is of essence to the proper functioning of the markets. This is where contracts between two people who might not know each other are enabled since rights are fairly allocated within a recognized legal framework and enforceable via the courts in the event of a breach. Economies that are thriving depend highly on a strong state that is able to secure property rights and investments. Over the past decade in England, there has been a decline of the civil justice system together with official pressure calling for diversion of civil disputes to private or alternative dispute resolution methods and a troubling anti-adjudication rhetoric.4 As such, it appears as though state responsibility for providing effective and peaceful forums to resolve civil disputes is slowly being abandoned through a discourse that showcases civil justice as a private matter rather than of public and social importance. Civil justice may not be put in the same category as public health or transport but it serves the public as well as the rule of law in a manner that surpasses private interests. Private value of civil justice focuses in the termination of disputes while public function is explicitly associated with the value of adjudication. Authoritative judicial determination plays a critical public role in the common law system by creating a framework in which dispute settlements are achieved. This means it is underpinned by the coercive power of the state bringing unwilling litigants to negotiate thus making it possible for the weaker parties to practice their rights exposing wrong doing.5 As much as most disputes settle without litigation, a flow of adjudicated cases is of essence to provide guidance on the law and on occasions make new leaps. Status of adversarial justice There is continued erosion of faith in the virtues of the adversarial system of justice as and complexity associated with adjudication, the duration of the proceedings and the litigation cost both to the government and the people involved has for a long time been the subject of critical debate. Such deficiencies in this system have been acknowledged in official reports in a couple of jurisdictions. The recognition of these deficiencies at an earlier point in time led to the establishment of a wide range of administrative tribunals with the capacity to deliver a more informal kind of justice. These tribunals were accorded jurisdiction rather than to the courts as it could be done without infringing on the separation of powers. Restrictions were imposed in some of these tribunals on the right of lawyers to appear just because they were lawyers.6 However, they are regarded as contributing to the deficiencies in this system. These tribunals supplemented but did not replace court adjudication. Growth in the administration and decision making of the tribunals saw a great expansion in judicial review of decisions regarding administration but did not slow the growth of the administrative tribunals. Court adjudication becomes increasingly costly as the cases presented became more complex accompanied with more volumes of materials. Long running cases are more frequent than in the past. Apparently, inequality in resources between the parties and the difference in the quality of lawyers precludes the system of court litigation from operating with absolute fairness. The complexity characteristic of modern litigation is in itself a reflection of modern legislation and commercial and corporate activity. Daunting in their complexity are the Income Assessment Act and the Corporations law. The mind struggles when it is forced to grapple with the details of both statutes especially the Income Assessment Act.7 It is in order to note that court adjudication does not have the monopoly over complex and long running cases. Tribunal proceedings harbour these very same characteristics. Many people have voiced their concerns and need for a lesser complex judicial system that eliminates the tumultuous litigations. There is tension between the societies insistence on simpler, less complex and in expensive litigations and the holy grail of individualised justice. Link between Adversarial system and Alternative dispute resolution methods In an effort to clear the deficiencies existing in the adversarial system, some governments in common law jurisdictions including Australia and the USA have promoted ADR as a remedy to this problem. The intent is not only to deflect criticism of the court system and the system but to also reduce the cost the government incurs in financing that system. Various forms of ADR exist independent of the court system.8 This presents a competition challenge to the adversarial system. Some courts have annexed ADR in an effort to reduce the challenges presented by court adjudication. This process has conjured up the possible vision of a multi-doored court house which could be looked at as a litigious market in which an interested party can find the best dispute resolution method that best suits his or her case. It is ironic though that the governments and the lawyers have promoted the virtues of ADR in order to take pressure off court adjudication. The whole point is that by encouraging litigants to resort to ADR, it will be easier for court adjudication to meet the demands made upon it. However, the arguments presented in favour of ADR do not suggest that it is a superior way of resolving disputes as compared to court adjudication. Rather, the varieties of ADR are worthy considering since they offer a wide range of attractions. This vision of multiple doored court house was designed to maintain court adjudication from potential threat of elimination by the various methods of Alternative dispute resolution.9 Is ADR a threat to court adjudication? ADR was at some point in time considered a threat to the court adjudication in some jurisdictions such as the USA. This has since been eliminated as a potential threat with adequate assessment that court adjudications will still thrive even with the existence of ADR. Court annexed ADR has circumvented the threat to court adjudication especially in the USA. In Australia, this development has well been received in the federal court. Court annexed arbitration has had significant also affected the common law division of the supreme court in New South Wales. This has seen the popularisation of mediation even in high profile cases. Mediation has also been considered as an option to some of the long running court cases therefore terminating the ever enlarging burdens especially due to the high cost.10 However, mediation should not be made compulsory as it could serve as an additional baggage to a party with financial difficulties. Future of Adversarial system There lacks evidence to indeed show that the future of court adjudication is threatened by ADR methods. There are several indicators to show that court adjudication will thrive in future even if it might not be a dominant mode of dispute resolution like it has been in the past.11 To begin with, the constitution dimension in which most jurisdictions entrench the use of judicial power. Court adjudication is also an integral aspect in the constitutional framework of most state governments. Secondly, it is difficult for a modern democracy to survive without a strong integrated system of public court adjudication. This system has its bases at the very core of separation of powers. Even if there is the possibility of criminal and public law to provide the basis of such a system, a more wide-ranging process of court adjudication is more desirable and necessary for maintaining the rule of law. Court adjudication in civil cases is important for the regulation of acts and transactions and particularly for the protection of financial transactions and other economic activity. The well being of commercial life depends on judicial enforcement of contractual rights and obligations. A public and comprehensive system of civil dispute resolution can only be provided b y the state in this way, that is, court adjudication. 12This is the only way the public can have confidence in peaceful resolution of disputes rather than resorting to other means. In essence, ADR is rather private and offered by various private providers. Moreover, the success of ADR largely depends upon the foundation provided by the court consisting of certainty and predictability as presented by the existing body of case law. Adversarial versus inquisitorial systems With the clear results to show that court adjudication will still exist in the future, this does not conclude that the court adjudication must follow the adversarial system. The courts could adopt the inquisitorial system. As both of these systems gradually evolve, some degree of convergence continues to take place. The continuous integration of the UK and Wales in the European Union has contributed to this. An identifiable element is the practice of holding judicial exchanges or conferences between senior English judges and senior European judges.13 English and European courts differ in that English courts place more emphasis on procedural fairness. They recognise the value of oral arguments within given time limits. The Irish counsel and United Kingdom are more effective than others in the European Union. No system of court however can wield public confidence if it fails in its consistency with decision making. European courts are no exceptions to this proposition. The main reason why the European system attracts critics of the adversarial is that it places more control in the hands of the judges and also because they are said to have strength in the investigation of the truth. In the adversarial system, the primary duty of the court is not to pursue the truth but make its decision by the case presented by both parties. It remains a vexed question to whether the European courts are successful in investigating. Some people posit that the European courts maybe unsuccessful on this but still more successful regarding the matter than the English courts. The European model offers future potential to redress the inadequacies in the adversarial system by giving judges more control over the cases. Courts take the initiative of ascertaining and proving facts, thus the burden on the parties and their representatives is significantly cut down especially on the cost aspect.14 Due to the reduced role of lawyers in the European system, inequality of competence in legal representation is also reduced as compared to the adversarial system. This is an important point to consider in the age where litigation by unrepresented person is increasing. This method has its limitation in that Europe has a known history of bureaucratic decision making processes today embodied by the European Commission and the council of Europe. This could make the process even longer as compared to the adversarial system. Secondly, by imposing a different kind of judicial process to the people does not necessarily mean it will work out. The people might also oppose it based on their history and culture of doing things and expected outcome of the litigation.15 A good number of judges will also be required in order to serve the cases as compared to the judges required in the common law adversarial system. This calls for more costs which the government is likely to oppose. The inquisitorial; system in Europe largely deals with criminal cases, as such; it makes little sense to appoint judges who will only be dealing with criminal cases. Such an exception would mean two categories of judges which is a recipe for disharmony, inefficiency and chaos. This could also mean new training techniques for new judges as well as re-training the existing judges. This move would also lead to a culture shock to the litigants and the entire judicial profession. In my view, moving to an inquisitorial system presents more disadvantages as compared to the advantages. Consequently, even with the encouragement of ADR, adversarial system should still be upheld. 16 Significance of ADR and case management Judges who were initially opposed to ADR and case management have slowly stated to appreciate it. ADR and case management have proven benefits and in particular the cost incurred is significantly lower as compares with adversarial system. As such, it is only wise to embrace such methods of dispute resolution as well as encouraging lower level forms of dispute resolution such as small claims jurisdictions, community service agencies, consumer complaints tribunals outside of the conventional court system. The main advantage of ADR is that it is likely to improve the quality of justice in that steps ensuring that issues are defined clearly and at an early stage and that quick consideration are accorded to settlement is done without incurring unnecessary costs.17 The single judge system as presented by case management presents a more efficient way of dealing providing justice since it is better for there to be one judge who is well aware of the proceedings from the start rather than introducing another judge in the middle of the proceedings. Currently in common law the biggest costs are brought about by the amount of money paid to each party’s legal advisers. Apart to the small court fee, the litigant is never concerned with the cost of providing justice and other overheads of the court legal process. Two observations can therefore be drawn from this. To begin with, cost only hinders ordinary citizens from litigation to an extent that it is incurred by the legal advisers. Secondly, to litigants, the cost of litigation is reduced by the courts performing the function rather than by the parties. Today, the cost of litigation has become has become rather high such that only few and large companies can afford the cost of this cost without the assistance of legal aid. It is safe to say that access to justice is being denied by the high cost.18 This is not absolutely the case as justice is also being denied by the unwillingness of the government to fund the ever increasing legal aid bill as well as cutting down on the available legal aid. As suggested by Lord Woolf in his report, Access to justice, if the adversarial system is too expensive, other systems of dispute resolution should be looked in to. Criticism of ADR Some criticism has been levelled against methods that are seen as an alternative to court adjudication. Case management for example has been said to entrust too much discretion to the judges.19 The end result is departure from uniformity which in turn leads to favouring individualised processes for particular cases. Differential case management contemplating allocation of cases to established channels have not been up held. Concerns have been raised towards the possibility of the judges playing a coercive role relating to settlement. This is a great risk as discussions of this kind are not subject to public scrutiny or the publicity which attends court adjudication. Critics assert that court proceedings should not degenerate into private proceedings which lack review and publicity.20 Openness and public scrutiny will always remain an essential and priceless characteristic of the judicial system. Bibliography Andrews N. The Modern Civil Process: Judicial and Alternative Forms of Dispute Resolution in England. (Tübingen: Mohr Siebeck, 2008.) Walker, Ronald J, Richard W, and Amanda W. Walker & Walkers English Legal System. Ox (Oxford University press, 2011). Blake, Susan H., Julie B, and Stuart S. A Practical Approach to Alternative Dispute Resolution. (Oxford University Press, 2014.) Harr J. A Civil Action. (New York: Vintage eBooks, 2011). Fellas J. Transatlantic Commercial Litigation and Arbitration. Dobbs Ferry, N.Y: Oceana Publications, 2004. Butler, William E. Justice and Comparative Law: Anglo-Soviet Perspectives on Criminal Law, Evidence, Procedure, and Sentencing Policy. (Dordrecht: Nijhoff, 1987). Scottish Law & Practice Quarterly. (Edinburgh: T & T Clark, 1995). Hastings College of the Law. Hastings International and Comparative Law Review. (San Francisco: University of California, Hastings College of the Law 1977). Malleson, Kate, and Richard M. The Legal System. (Oxford: Oxford Univ. Press, 2010). Davies G and Anthony R. Forensic Psychology: Crime, Justice, Law, Interventions. (Chichester, West Sussex: John Wiley & Sons, 2012). Alexander N. Global Trends in Mediation. (Alphen aan den Rijn: Kluwer Law Intern, 2006). Creyke R. Tribunals in the Common Law World. Annandale. (N.S.W.: Federation Press, 2008). Fletcher M, Robin L, and William C. EU Criminal Law and Justice. (Cheltenham, UK: E. Elgar, 2008). Adversarial Versus Inquisitorial Justice: Psychological Perspectives On. ([S.l.]: Springer, 2012). Strier F. Reconstructing Justice: An Agenda for Trial Reform. (Chicago u.a: University of Chicago Press, 1996). Read More