MCKENZIE ARE NOT ALWAYS FRIENDS

I would imagine that any J.P. with ten years on the bench would have had a McKenzie friend before him/her. The following is copied from Wikipedia.

A McKenzie friend assists a litigant in person in a court of law in England and Wales. This person does not need to be legally qualified. The crucial point is that litigants in person are entitled to have assistance, lay or professional, unless there are exceptional circumstances.
Their role was set out most clearly in the eponymous 1970 case McKenzie v McKenzie. Although in many cases a McKenzie friend may be an actual friend, it is often somebody with knowledge of the area, and the trend is heavily in favour of admitting McKenzie Friends. He or she may be liable for any misleading advice given to the litigant in person. 

My own experiences of such people is mixed.  Some were clearly not up to the task whilst others thought they could be a latter day Cicero.  What I did not realise then was that the McKenzie Friend  was not necessarily a friend or benevolent assistant but could be a paid professional.  There are in fact twenty three such people offering their services in the courts. With the limiting of the availability of legal aid it doesn`t take the mind of a latter day Nostradamus  to predict that demand for such services is likely to increase. Indeed the scenario reminds me of the time when teaching assistants began to be employed in the classrooms of primary schools.  Their duties will be limited. They won`t be actually teaching the children we were told  but will assist in ancillary tasks eg ensuring books are open at correct page, distributing items when ordered to by teacher etc etc.  The introduction of PCSOs, parking wardens inter alia was preceded by similar assurances and we know now that such roles have expanded steadily in order to contain costs when authorities have considered that these lesser educated and lowly paid people could be exploited to undertake their seniors` work.  The results are only too well known in the justice system when non lawyers now prosecute for the CPS and probation staff are struggling to stand still with their workload and outcome figures are not to be trusted.  McKenzie Friends` activities are now under scrutiny by the Law Society.  At one time there were solicitors. Now to join them are legal executives and para legals.  It won`t be long before McKenzie Friends follow the trend of self aggrandisement and become more common in the well of the court.

PROBATION REFORM AND McKENZIE FRIENDS

There were many who were doubtful of the hype surrounding "reform" of the probation service.  Sadly but predictably these scepticisms have borne fruit. I told you so is no response to the appalling mess created by Chris Grayling.  It seems political advancement  is the reward for failure.  

With the advances in civilisation it seems that the idium "nature abhors a vacuum"  should  also be applied to humanity.  The wholesale decimation of our legal aid system and the consequences for those bereft of legal advice has in a remarkably short timeframe turned what was an occasional situation in courts into one where those unqualified in law but assuming the mantle of McKenzie friend have even formed their own association. I last posted on this topic 12th January 2016.  It seems, not before time, that the authorities are beginning to take notice of these people.   Perhaps some of the benevolence apparently seeping out from this Tory government will reach the MOJ.

JUSTICE UNBALANCED

That our courts system is probably near melt down will not be news to any whose knowledge is gained from first hand experience.  From 2010 when the provision of legal aid began to be  strained through a sieve and the closure of magistrates` courts became government policy enthusiastically put into practice by Kenneth Clarke and those who succeeded him there can be little doubt that the concept of the state offering justice for all and a level playing field between accuser and accused has been well and truly abandoned.  Now that the number jugglers are controlling policy government attitude seems to be to drive down costs irrespective of the effects on the lives of ordinary citizens caught up and entangled in the legal labyrinth which begins with police and ends in sentence.  It is therefore hardly surprising that magistrates` courts have seen increasing numbers of so called McKenzie friends attempting to do on the cheap what was previously the responsibility of state funded legally qualified practitioners. I posted my misgivings 4th October 2016 and earlier.  Considering that even a police caution never mind a minor criminal conviction can play havoc with someone`s career or travel prospects some might express surprise that such a situation has come to pass.  On one hand any criticism of a "free at point of use"  NHS invites outrage whilst on the other we have consciously arrived at a point where only a small percentage of defendants can afford to pay for professional legal expertise to navigate the maze of the criminal law.  It is indeed a travesty of justice. Even Corbyn and his Marxist ranting has not broached the topic.  The Tories hope that their core followers are just not interested.

In November 2015 The Rt Hon The Lord Thomas of Cwmgiedd Lord Chief Justice of England and Wales gave a lecture entitled "The Centrality of Justice, its contribution to society and its delivery".  I have copied it in its entirety. I think it`s worth a few minutes reading time.


Introduction1
1. It is a privilege and honour to give this lecture in memory of Lord Williams of
Mostyn. It is made possible by the generosity of Farrar’s Buildings (where I was
pupil as a barrister to His Honour Judge Monro Davies QC and of which my
judicial pupil master His Honour Judge Sir Robin David QC was a door tenant). It
is a privilege, as although Lord Williams and I never practised in the same area of
the law, he was always most generous in his encouragement, wise advice and
counsel. It is an honour as Lord Williams’ career spanned both the bar (for he was
successively leader of the Wales and Chester Circuit and Chairman of the Bar) and
the House of Lords (he was successively an Undersecretary of State, Minister of
State and Deputy Leader of the House of Lords, Attorney General and Leader of
the House of Lords). More importantly he was, as Lord Falconer described in the
Dictionary of National Biography, a “committed reformer”:
He wanted to change the institutions of which he had been so successful a
member. But he never lost the support of the two institutions where he achieved
pre-eminence—the Lords and the bar.
2. It is with these words in mind that I turn to the subject this evening: explaining the
centrality of justice in our nation State and addressing the urgent need for radical
reform to safeguard and enhance that centrality though the better delivery of
justice. This is a reform that must be achieved with the support of those engaged in
1 I wish to thank Dr John Sorabji for all his help in preparing this lecture.
2
the justice system and others.
Democracy and the institutions of the state
3. It is appropriate to take democracy as my starting point. In particular it is to the
reflections of the second President of the United States, John Adams, one of the
great US Presidents and of Welsh descent.2 In a moment of pessimism, he said:
Democracy never lasts long. It soon wastes, exhausts and murders itself. There
never was a democracy yet that did not commit suicide.
4. Adams’ observation is of continuing relevance. The commitment to democracy is a
living commitment which must be secured by two pillars: the strength of its
institutional pillars (the executive, parliament and the judiciary) and the assent and
confidence in the institutions by those who are governed by them.3
5. Tonight I want to focus on one aspect of the first pillar – the judiciary and the
justice system – and its central role in our democracy.
6. The warning of Adams is equally applicable to the justice system. We all know of
the barbarity of the criminal justice system and the appalling delays and expense of
our civil justice system before the reforms of the nineteenth century. These were
good examples of how a system of justice can waste and exhaust itself. But
although we rightly pride ourselves as having one of the finest judicial systems in
the world, there are serious dangers to our system which demand reforms perhaps
as radical as those of the nineteenth century. I want therefore to look at what
reforms must be made to preserve public confidence in our system of justice and,
more importantly, to enhance it, so that Adams’ pessimism does not become a
prophecy applied to that institutional pillar of the state.
The justice system: its contribution to society
Is it simply an adjudicative service?
7. Let me first turn to say something of the centrality of justice and the nature of our
judicial system. You may wonder why I do so. There is an emerging view that our
judicial system is simply nothing more than the provider of an adjudication service
either between the citizen and the State, or between citizens. The view gains
2 Welshmen as factors in the formation and development of the US Republic – the successful prize essay at the
International Eisteddfod at the World’s Columbia Exhibition, the Chicago World Fair of 1893.
3 K. O’Regan, A Pillar of Democracy: Reflections on the Role and Work of the Constitutional Court of South Africa, 81
Fordham Law Rev. 1169 (2013).
3
currency as it is perceived that individuals, businesses, local and central government
come to the courts to use them as an adjudication service, just as they would go to a
mediator, arbitrator or ombudsman or other private provider of such services.
8. Differences, of course, do exist between the justice system and these other dispute
resolution services. The justice system would, for instance, be viewed as a state
monopoly, although it would no doubt be possible to conceive of an ombudsman
service as a monopoly provider within the ambit of its jurisdiction. Equally, the
justice system could be seen as providing an adjudicatory dispute resolution service,
unlike the more facilitative process provided by mediator. But then again,
arbitration and, to a certain degree, ombudsman services provide an adjudicatory
process. Differences, and similarities, can be multiplied.
9. If the judiciary were looked on in this way as simply a provider of adjudication
services, it would be impossible to see how the judiciary and the justice system
could be conceived as a pillar of democracy. Conceived of as a service, and one that
does no more than resolve disputes – whether civil, family, criminal, public law or
private law – there is little perhaps to differentiate it from various forms of
alternative dispute resolution. Any distinction between formal and informal justice
begins, if it is not already on this view, to be lost. Worse than that, formal justice
collapses into informal justice. Looked at this way, the fears expressed by writers
such as Professor Trevor Farrow that the common law is in danger of privatising
justice, can seem all too patent.4
The fallacy in viewing it as an adjudication service
10. The idea that the justice system does no more than provide a dispute resolution
service, that in doing so provides merely private benefits to litigating parties, is
fallacious. I agree with Chief Justice French of the High Court of Australia that
“courts are not and should not be seen to be providers of a spectrum of consensual
and non-consensual dispute resolution services”.5
4 See for instance, T. Farrow, Civil Justice, Privatization and Democracy, (2014).
5 R. French, Essential and Defining Characteristics of Courts in an Age of Institutional Change, (Supreme and Federal
Court Judges Conference, Adelaide, 21 January 2013) at 3. See
http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj21jan13.pdf.
Discussed in P. Spender, Wavering alternations of valour and caution: Commercial and regulatory litigation in the
French CJ High Court, (2013) 2 J. Civ. LP 111 at 116ff.
4
11. The idea is fallacious because it undermines our constitutional settlement. A
democratic state secures justice, in the widest sense, for its citizens through
representative institutions of government – Parliament and the Executive – and
through an independent judiciary and justice system. The latter ensures that those
institutions, just as much as the state’s citizens, act within the law. A consumer
service merely resolving disputes cannot play such a role. Mediation, for all its
rightly recognised virtues, cannot do so. Nor can arbitration, nor any ombudsman.
12. If we conceive of the justice system as no more than a service provider, we plant
the seeds for Professor Farrow’s feared privatisation. If the justice system is no
more than a state monopoly providing exactly the same benefits to individuals as
the London Court of International Arbitration, one of any number of mediation
services, or, for instance, the Furniture Ombudsman,6 then the next logical question
is why should the state maintain that monopoly? Its danger lies equally in the fact
that it might facilitate the false belief that the justice system is in the same category
of public services as education and the health service. It is not. It is in the same
category as Parliament and the Executive. It forms part of the institutional
framework which safeguards the rule of law and underpins democracy.
13. There is no suggestion that the justice system is to be privatised. But, as Professor
Dame Hazel Genn has cogently and forcefully argued, the suggestion is there that
the courts do no more than provide services that confer private benefits on litigants
has more than found its way into mainstream.7 The position was perhaps best
summed up in an article by Dingwall and Cloatre who concluded that:
Successive U.K. governments have decided that, although civil justice may be a
public service, it is not a public good in the sense that Lord Woolf asserted in his
first report. Although, as Lord Woolf notes, governments have been reluctant to
defend the policy in public, their communications with the Civil Justice Council
made it clear that they see the system as providing only private benefits for
individuals rather than collective benefits for the society as a whole.8
6 An independent not-for-profit organisation established in 1992. It specialises in providing Alternative
Dispute Resolution services for consumers and businesses in the retail, furniture and home improvement
sectors.
7 See for instance, H. Genn, Judging Civil Justice, (2010); H. Genn, Why the Privatisation of Civil Justice is a Rule of
Law Issue, (F.A. Mann lecture, 2012). See http://www.laws.ucl.ac.uk/wp-content/uploads/2014/08/36th-
F-A-Mann-Lecture-19.11.12-Professor-Hazel-Genn.pdf.
8 R. Dingwall & E. Cloatre, ‘Vanishing Trials?: An English perspective’, Journal of Dispute Resolution 7 (2006)
51 at 67.
5
Institutions that simply confer private benefits on individuals are not one of the
pillars of democracy and cannot safeguard the rule of law or the prosperity of our
nation state.
The true ambit of the justice system
14. Why is the justice system therefore a pillar of democracy? There are a number of
reasons. Time will permit me only to mention some of the more important: first,
the safeguarding of the rule of law, second, maintaining the certainty of the law
while allowing for its development, third, providing public access to the law, fourth,
providing openness and accountability and fifth, making decisions independently of
interests.
15. Let me say a word about each of those I have mentioned.
Safeguarding of the rule of law
16. First, the justice system safeguards the rule of law. The means by which it resolves
disputes differs qualitatively from the approaches taken by the many mechanisms of
informal justice. It does so through providing substantive justice by finding fact and
applying it to law. It provides justice according to law. It does so through a fair
process; one that guarantees equality of arms between the parties, which is neutral
as between them. This plainly has value over and above the individual case. As
Professor Fuller rightly noted the means by which the courts, through hearing and
testing evidence and reasoned argument presented by disputing parties, is a
fundamental means through which the rule of law is made real. It is of the essence
of the democratic state.9
Maintaining the certainty of the law whilst allowing for its development
17. Secondly, the provision of substantive justice is not simply an end in itself. Its reach
goes far beyond the immediate parties. In this respect, and unlike any aspect of
informal justice, it is a continuous process that affects the other pillars of
9 L. Fuller, The Forms and Limits of Adjudication, (1978) 92 Harvard Law Review 353.
6
democracy just as it does all citizens.10
18. Decisions in individual cases clarify the law where it is obscure. They provide
certainty where there has been doubt. They ensure that the norms provided by the
law truly are norms, and not mere aspirations. They transform bare rules of law into
a living framework guiding the lives of citizens, economic activity by small, medium
and multi-national corporations, and government conduct:
Protecting legal rights (in other words) has value beyond what those rights are
worth to any single (litigant).11
19. The justice system achieves this transformation in two ways. First, through what
could be described as the certain application of the law to individual cases. Through
deciding cases consistently with precedent and under the guidance of an appellate
structure, the judiciary maintains certainty in the law. Individuals, business and
government can order their affairs on a sure legal footing. The consistent
application and explication of the law enables all of us to know the legal framework
within which we live our lives.
20. Secondly, it does so through judges developing the law. Judges can do so in
appropriate cases, in accordance with established principle, as explained by Lord
Diplock in Home Office v Dorset Yacht Co. Ltd,12 and more recently elaborated by Sir
John Laws in his Hamlyn lectures,13 Substantive justice’s achievement in any one
case can result in the development of novel law. As any first year law student knows
without this common law approach there would be no Donoghue v Stephenson.14
Equally, there would be no principled – and still developing – law of restitution or
unjust enrichment. Without the court’s ability to develop the law, without its
creative function, the tort of negligence would have progressed no further than
Esher M.R.’s decision in Heaven v Plender,15 and unjust enrichment would remain
swimming in the confused and murky shallows of implied contract.
10 It does so because, in the words of James Madison, “law is . . . a rule of action”. To be effective as such
it must be known and fixed. J. Madison in A. Hamilton, J. Madison, J. Jay, The Federalist Papers (C. Kesler,
ed.) (Signet, 2003), No. 62., at 379.
11 D. Rhodes, Access to Justice (2004) at 11.
12 [1970] A.C. 1004.
13 J. Laws, The Common Law Constitution (2014).
14 [1932] A.C. 562.
15 (1882 – 83) L.R. 11 Q.B.D. 503.
7
21. Individual decisions do not therefore merely provide a service to the litigants; they
play an essential part in the maintenance and development of the law. They are a
fundamental aspect of our common law constitutional settlement, since they help
create the framework of law.16
22. The contrast with the methods of informal dispute resolution is clear. No means of
securing informal justice could legitimately play such a role. There are, of course,
limits to the justice system’s creative role. It is, broadly speaking, incremental. It is
evolutionary not revolutionary. And most importantly, it is subordinate to
Parliament, which is rightly sovereign within our constitution. Subject to these
limits, the justice system speaking through individual decisions is an institution of
the State, not a mere service provider.
23. The contrast can again be seen by reference to the impact of arbitration. Up until
1979 a substantial contribution had been made to the development of commercial
law by appeals by way of special case (in effect a case stated) from decisions of
arbitrators. A substantial amount of my own experience as a young commercial
lawyer was to request the arbitrator to state the award in the form of a special case
on a point of law; if I lost the arbitration, I could appeal to the Commercial Court.
It is undeniable that the practice, as applied not only to the maritime market but
also to the commodities market, produced far too many appeals. So in 1979 an
Arbitration Act restricted the right of appeal. That restriction is now embodied in
the Arbitration Act 1996. Many have felt that the restrictions are too tight and have
stultified the development of English commercial law. As long ago as 2004 in
delivering the Sixth Cedric Barclay Lecture, Sir Robert Finch, then the Lord Mayor,
called for a widening of the scope of appeals from commercial arbitrations as a
need to help the modernisation of English commercial law so that it kept in tune
with the developments of the commercial world. Eleven years on, the need is even
greater. One of the central defects of arbitration is that the process by which the
law is developed in a way (which I shall now turn to describe) cannot take place
within the privatised system of arbitration.
16 In the words of Lord Nicholls: “The common law is judge-made law. For centuries judges have been
charged with the responsibility of keeping this law abreast of current social conditions and expectations.
That is still the position. Continuing but limited development of the common law in this fashion is an
integral part of the constitutional function of the judiciary”. National Westminster Bank v Spectrum Plus [2005]
A.C. 680 at [32].
8
Providing public access to the law
24. A third fundamental aspect of our judicial system is that decisions are made
available to all citizens so that they can plan their lives on the basis of the law.
25. Jeremy Bentham once entertained the idea that if we could render law simple,
through codification, everyone could be their own lawyer.17 Codification would in
fact never have produced the answer he wanted; codes stand in need of
interpretation and explication just as do other forms of law. There is vastly more to
German contract law than is found in the BGB – Bürgerliches Gesetzbuch. There is
more to the US Constitution than its bare words.18
26. Bentham had two reasons for thinking that it was important that everyone could be
their own lawyer. The first reason would not be popular to some. Bentham
considered making the law simple was a means by which the necessity of resorting
to – and having to pay – lawyers could be avoided. Where legal disputes arose
everyone could be a litigant-in-person well-versed in the law, and well able to fight
their corner before the courts. The second reason was to ensure that, if the law was
well-understood by all, they could take steps to ensure that legal disputes did not
arise. It had a preventative function. Understanding the criminal law, and the penal
consequences that flow from breaching it, would play an essential role in ensuring
that society would be peaceful. Understanding the operation of contract law, the
extent of a duty of care, would enable individuals and businesses to avoid the
adverse consequences of breaches.
27. As disputes are avoided through proper planning, society’s resources can be
directed in ways which are neither “wasteful” nor “disruptive”.19 Again it is not
possible for arbitration or mediation to play such a preventive role. Resolution
reached by such methods is necessarily private as between the parties. It is not
binding either on other parties to arbitrations or mediation. It cannot clarify or
develop the law. Insofar as decisions circulate, they often circulate to a narrow
range of lawyers who may then gain special knowledge of the way in which groups
of arbitrators decide issues. It therefore lacks the features that would enable it play
the wider normative role of decisions reached in litigation before the courts.
17 J. Bentham cited in P. Schofield, Jeremy Bentham: Legislator of the world, in M. Freeman, Current Legal
Problems 1998 (1988) at 137.
18 For a discussion see A. R. Amar, America’s Unwritten Constitution (2012).
19 D v NSPCC [1987] AC 171, 232.
9
28. Ombudsmen, it might be said, may play a similar function to the courts. As an
academic in the Netherlands has pointed out, they and their decisions can both
inform and educate.20 But here too there is a problem. Ombudsman and their
decisions play this role against the background of norms established by the courts.
As with arbitration and mediation, it presupposes the framework of law provided
by the justice system.21 ADR rests upon the robust health of the justice system if it
is to play its proper role. Absent the justice system, absent ADR. And that is as true
for ombudsmen as it is for mediation, arbitration and any other form of ADR.
Providing openness and accountability
29. Fourth, it is a clear principle of the justice system that justice must be delivered
publicly and openly in a court so that what is argued and the evidence on which the
court proceeds is known. That members of the public can attend and scrutinise our
courts ensures that justice, whenever it is being carried out, is on trial. As Lord
Atkin recognised justice cannot long survive as a cloistered virtue.22 It must be
public and open, save in a very restricted number of circumstances.
30. Openness also provides for accountability in the application and development of
the law. A court is not a deliberative assembly. Not since the abolition of the Court
of Star Chamber has England and Wales had a court of policy.23 Our courts are
courts of law. This is not to say however that the law does not develop, within
established and principled boundaries, in the light of changes in social and public
policy, as I have explained. The law must evolve in order to remain relevant to
society. The extent to which the courts can and do develop the law in these ways is
necessarily a matter of debate. This must be done in a manner that is acceptable –
debate primarily between the parties but which is conducted openly so that it can
afford the opportunity for wider debate which is facilitated by journalists and court
20 M. Remac, Standards of Ombudsman Assessment: A New Normative Concept?, Utrecht Law Review Volume 9,
Issue 3 (July) 2013, 62 at 73 – 74.
21“Ultimately the collaborative paradigm falters if not grounded upon an absolute”. Professor Jeffrey
Wolfe, Across the Ripple of Time: The Future of Alternative (or, is it ‘Appropriate?’) Dispute Resolution, (2001) 36
Tulsa Law Journal 785 at 794.
22 Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 at 335, “. . . justice is not a cloistered
virtue: she must be allowed to suffer the scrutiny and respectful…comments of ordinary men”.
23 F. W. Maitland, The Constitutional History of England, (Cambridge) (1909) at 263.
10
reporters making public the issues which are being debated.
31. That wider debate informs and is informed by public views. As is evident, they can
sometimes have a material effect on the decision on the law. Any particular
development by the courts can inform and enable public debate and discussion, and
through that political debate. The outcome of that debate can, of course, be
corrective steps by the government and Parliament. The justice system is not itself
above the law. As such, just like Parliament and the government, the justice system
is accountable through its reasoned decisions and its appellate process.24
32. Accountability goes further. In a democratic state, institutions of governance must
be accountable to its citizens. This form of accountability necessarily differs across
such states. And it differs within states depending on the pillar of government in
question. Here our Parliament is accountable via free and fair general elections now
held every five years. Our Executive is accountable through Parliament and through
the electoral process. The judiciary, in order to preserve judicial independence and
thereby the rule of law, is not directly accountable through elections, but this is not
to say that it is not democratically accountable. It is, in ways which neither
mediation nor arbitration or ombudsman could be accountable. I have already
mentioned one way: open justice. A second direct accountability comes through
direct participation of all citizens in our criminal process. Lay juries and lay
magistrates (justices of the peace) lie at the heart of our criminal justice system.
Making decisions independently of interests
33. Fifth, decisions made by the judiciary are indisputably independent. Each judge, as
you all know, takes an oath that he or she will decide all cases without fear or
favour, affection or ill will. That obligation is buttressed by the requirement that the
judge must avoid any perception of conflict of interest by any material association
with the subject matter in issue. The judge is beholden to no party for payment of
salary or for the provision of further work. The judge is in no sense beholden to a
trade organisation, an industry or a regulatory body. The judge is not therefore at
risk of “capture”. The judge is truly independent.
24 C. Turpin & A. Tomkins, British Government and Constitution, (Cambridge) (2011) at 567.
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Conclusion
34. These five reasons are some of the main reasons why justice provided through our
judicial system is an essential feature of a democratic state: it is a manifestation of
our commitment to the rule of law; it is not an end in itself, but rather the means by
which the framework of law is clarified, developed and given normative force; it
provides the bedrock upon which all forms of ADR rest. It is thus more than the
public good argued for by Professor Dame Hazel Genn and others. It is in this way
an essential pillar of our democracy.
35. There can therefore in my view be no doubt of the centrality of the justice system
to the modern, democratic state. If the State is to carry out its core duty, of securing
justice, for its citizens through the elaboration, vindication and execution of their
and its rights and duties, it cannot but ensure that the justice system is understood
to be as important as parliament and the executive, and that it is supported
accordingly.
36. Our society rests on three pillars. Should anyone of them fall, we will all fall with it.
I have already made clear the need for radical reform. The question then becomes
how we carry out such reform to the delivery of justice so that it retains that
centrality and its vital role as a pillar of our democracy and does not fall victim to
Adams’ observation. It is to that I now turn. I do so on the assumption that proper
funds will be provided to enable reform to take place.
Reforming the delivery of justice
The principled basis on which to approach reform
37. The proper basis for reform, as a means of securing the better delivery of justice,
must be a principled one. It must be one that is predicated on the understanding
that the justice system is a pillar of democracy; that it succeeds only in so far as it
secures substantive justice and the concomitants to that, which I outlined earlier;
and that it does so consistently with a number of constitutional principles. Those
principles, which I am sure you well know, are, to name a few: the constitutional
right of access to the courts, to equality before the law, to open justice, to timely
and affordable justice, and its delivery by an independent and impartial judiciary.
These principles are the balance upon which proposed reforms must be weighed.
Let me therefore turn to some of the areas in which radical reform is essential.
12
Technology
38. Reform to the court infrastructure is essential. There is no way in which the present
system can continue. Reform is therefore predicated on the better use of modern
technology to provide the basis of a modernised infrastructure.
39. Part of this will be the increased use of technology as a means to access the court
process. However, as reform must proceed in accordance with principle it will
require steps to be taken to ensure that that is accessible. If, for instance, the means
to commence a claim is by issuing it online the technology must not simply have to
work, but it must be available to everyone in a simple enough way that it can easily
be used. We cannot, in the name of increasing access to justice, create a new barrier
to entry. Equally, if we are to move a large number of hearings online we cannot do
so at the cost of open justice. If we undermine open justice we reduce judicial
accountability and, crucially, an aspect of participatory democracy. Technology
must be a means to enhance not undermine.
Procedural reform
40. This leads me to procedural reform. I need not speak about the reforms that have
taken place in the family justice system. Further reform awaits IT. In the criminal
justice system, the steps to be taken are clearly laid out in Sir Brian Leveson’s
report; digitalisation is underway.
41. As to reform of the civil courts, I can well imagine that one not unreasonable
response to any suggestion of further procedural reform from those who practice in
the civil courts would be, as they say in America, “stop already”. Constant tinkering
undermines certainty, increases satellite litigation, and through that increases
litigation cost and delay.
42. There is, however, no alternative to further and more radical reform. That is
because technology-based reforms to administrative processes will necessarily lead
to radical procedural reform. If, for instance, the default position becomes that
claims are issued and served online, procedural rules must be made that underpins
this. But those rules, given sufficient resources and expertise, must enable
procedure properly to be simplified in a large number of areas. Anyone who doubts
this should read Lord Justice Richards’ masterly and magisterial Barnard’s Inn
13
Lecture.25
43. Could the use of technology go further than procedural reform to facilitate online
hearings and e-process? In two recent Reports both the Civil Justice Council and
JUSTICE suggest that that is so. Taken together they propose a new online court
and the introduction of a new class of quasi-judge, a Registrar. This new class of
court officer (in the United States they would describe it as a member of the
Adjunct Judiciary) would be able to carry out case management, to screen claims so
that they were allocated to an appropriate dispute resolution mechanism, amongst
other things. They would therefore have to be experienced, skilled and well-trained.
The review by Sir Michael Briggs will be considering how far such proposals can
properly be taken. For example, it will be necessary to ensure that justice remains
open and that the development and clarification of the law will take account of all
types of case. Reducing the number of claims determined by way of judgment could
reduce the courts’ ability to develop precedent. Such an approach would have
meant no Donoghue v Stephenson.
44. This is an important consideration. I have already referred to the effect of the
curtailment of appeals from arbitration. The more disputes that are and have been
determined by private forms of adjudication, the fewer opportunities the courts
have had to develop commercial law. And the consequence of this is that the law
can ossify. It cannot work itself fine; correct errors; make clear the content of
rights. Its ability to provide a sure framework for the development and carrying out
of social relations, business dealings and so on is undermined. It thus undermines
our democracy.
45. One example of how we can properly effect such reform is the approach that has
recently been taken in the Chancery Division and the Commercial Court. They have
seen the introduction of both a new Financial List and a Shorter and Flexible Trials
Procedure. I should also add that these courts together with the Technology and
Construction Court are also moving fast in the direction of electronic processing.
In all three instances it provides a model for reform.
46. The introduction of the Financial List is of particular importance, as it will provide
a more efficient and economical means to resolve financial disputes. It will thus
help to secure greater access to the courts here. Equally it will provide access to the
25 See http://www.gresham.ac.uk/sites/default/files/25jun15stephenrichards_civillitigation.docx.
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expertise of specialist High Court judges, thus increasing access to high quality
justice. And as importantly, it will enable the development of the law through
enabling market test cases to be decided for the benefit of all. It is a reform that not
only enhances our ability to implement constitutional principle, but it is one that
enhances our ability to secure the normative value of the law. It is to be strongly
contrasted with the damaging effect of the use of arbitration in other markets to
which I have earlier referred. Perhaps the availability of a test case procedure for
the financial markets will lead to an urgent re-consideration of the test for appeals
from arbitration in other city based markets, particularly the maritime, insurance
and commodities markets, or the provision of a similar facility for important issues
in those markets.
47. The Shorter and Flexible Trials procedure is another example of principled reform.
Our historic approach to process is that it is prescriptive. Directions are made
within the boundaries set by the rules. Other jurisdictions have taken the view that
procedure should contain the option for parties to opt for greater procedural
flexibility. For instance, to agree for their claims to come to trial within a short
period of time, to agree to limit certain procedural obligations, such as the extent to
which disclosure should apply or the length of time available for trial. The aim
remains to secure substantive justice. The parties can, to a certain extent, agree to
reach that goal in different ways that previously permitted. Again, such a
development, through facilitating access to justice, is one that enhances the courts’
ability to act consistently with principle, and secure increased participation through
reducing litigation time and cost.
48. The task for both reform to the court system and the review by Sir Michael Briggs
is to consider how best to structure reform within the principles I have outlined; to
work out how far we can properly use Registrars and how far we can properly
create a multi-door courthouse that both promotes appropriate dispute resolution
whilst ensuring that the court’s adjudicatory function is enhanced rather than
undermined.
Court location
49. Another essential component of reform is the importance of local justice. The
proposals for court closures have, rightly, caused significant concern in many areas,
including Wales. As I have said on other occasions, consideration of such closures
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can only proceed if we use modern technology to put in place a real alternative that
can produce proper local justice. I need not repeat what I have said on other
occasions, most recently in Cardiff. There is one other aspect to local justice to
which it is necessary to refer.
50. At the core of my description of the centrality of justice is the principle that the
system of justice is one of the three powers of the State. While there can be debate
about the extent to which the police and the prosecution should be organised and
be accountable on a local basis, the same is not true of our system of justice. Not
only would it be contrary to constitutional principle and the principles on which our
system of justice has been organised for many centuries, but independence of all
local interests is essential to maintain the integrity of our system of justice and as
importantly to maintain the integrity of local government and its freedom from
improper influences.
The structure of the courts
51. Our court structure is the product of the 1870s and the 1970s; the former creating
the High Court and Court of Appeal, and the latter creating the Crown Court, and
seeing the present three Divisions of the High Court come into existence through
the creation of the Family Division. More recently we have seen the creation of a
new single Family Court and the consolidation of the county courts into a single
County Court.
52. The overall structure of the civil courts has not however been subject to detailed
scrutiny to ascertain whether it remains appropriate for the 21st Century. In one
sense that this has not happened is remarkable. When the High Court was created it
was never intended that its Divisions would remain as they were. Bar the early
consolidation of the three original common law Divisions to create what is now the
Queen’s Bench Division and the reform of the Probate, Division and Admiralty
Division to create Family Division, they have. The creation of Divisions and the
power to revise them was intended to ensure that the High Court’s structure would
reflect the changing business needs of the courts.
53. That such scrutiny is long overdue is made all the more pertinent given two further
issues. First, since the introduction of the Woolf reforms, and more recently the
implementation of the Jackson and the Briggs reforms to the Chancery Division,
the boundary between the County Court and the High Court’s jurisdiction has
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become increasingly blurred. Work that would traditionally have been reserved, due
to its complexity and financial value, is now and increasingly becoming and is the
province of the County Court. Secondly, technology. This may now enable us to
create what has been described as an online court for certain types of civil claims.
Less dramatically, although of equally far-reaching consequences, proper use of
information technology should enable us to put in place fully electronic case
management and progression systems. E-filing, e-bundles, e-issuing of claims and
so on should become the norm, as in a significant number of cases, virtual case
management and other procedural hearings.
54. I await the outcome of the review by Sir Michael Briggs, and its recommendations
as to how our civil court structure ought to be reformed in order to best enable it to
deliver justice today. Its recommendations will, of necessity, have to be tested by
reference to constitutional principle just as much as by reference to how, and the
extent to which, they will render the justice system more economical and efficient.
55. It is also necessary to give further consideration to the relationship between the
courts and the tribunals. There can be no doubt about the huge success of the
reforms to our system of tribunal and administrative justice that has been brought
about as a result of the report of Sir Andrew Leggatt. Over the period since that
report was implemented, there has been a gradual coming together of the way in
which the judges in the courts and the judges in the tribunals work. For example, a
significant amount of judicial review work is carried out in the tribunals; the way in
which courts and tribunals deal with cases has been influenced by the respective
practices. This influence will only increase as courts and tribunals share the same
buildings.
Other reforms
56. There are many other radical changes that must be made but time does not permit.
Working together
57. I must therefore turn to a further principle: to emphasise that this is not reform that
can be successfully carried out unless all those interested have a role in carrying
forward the reform.
58. For the criminal justice system to work optimally, interaction between the courts,
prisons, the Crown Prosecution Service and other such bodies needs to run as
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efficiently as possible. If the courts are to be in a position to deliver timely justice,
cases need to come on at the right time, which requires well-briefed and wellprepared
lawyers to be present in court, witnesses to be there on time and
defendants to be present, at the right time and place. This is the approach that has
underpinned the report of Sir Brian Leveson and will under pin carrying it into
effect.
59. The same is true for both the civil and family justice systems. The courts and the
judiciary are not islands unto themselves. The delivery of timely and effective justice
requires close working between them and a host of external agencies, individuals
and legal representatives.
60. In answering the question how we ensure that we can improve the delivery of
justice we cannot therefore simply focus on the courts and judiciary. Governments
at one time talked about having joined-up policy-making. The sentiment was
undoubtedly correct: if reform is to work as well as it can, it has to be coherent
across the piece. It is no good improving one aspect of a system in order, for
instance, to improve its speed if unreformed elements mean you can never attain
that improvement.
61. The delivery of justice needs to be understood as a requiring a close working
relationship between the courts and judiciary and a number of other institutions
and individuals. Real improvement will come when all aspects of the system can
work together more effectively and efficiently. In the delivery of reform we must
retain the support of the professions and all others engaged in the system.
The anticipated benefit
62. Taken together these reforms will not simply prevent the decline and ultimate decay
of our system of justice but will improve the system’s ability to operate as a pillar of
democracy. That is why I highlight them. In doing so I realise that some may say
that it is all well and good to improve access to justice for businesses; that
improvements more urgently need to be made to improve access for the less welloff.
That is undoubtedly the case: principle requires it of us. Equality before the law
cannot simply be a matter of form. It must be made real. The justice system must
deliver for all within society. That is why the senior judiciary and I are committed to
ensuring that this latest stage of reform is carried out as carefully and in as
considered a way as possible.
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Conclusion: the centrality of justice
63. I started this lecture with the warning given by one US President of Welsh descent
about the vitality of democracy. I should end therefore with something that has
often been attributed to his some-time friend and rival and another US President of
Welsh descent: Thomas Jefferson. He is believed to have once said that “on matters
of style, swim with the current, on matters of principle, stand like a rock”.
64. The present style, if it could be put that way, is for radical reform. Tomorrow’s
justice system will, if funds are provided for reform, undoubtedly differ in many
ways from the one I knew when I started life as a barrister. How it develops must
be shaped by matters of principle. On this we cannot move. That is the bedrock.
Those principles are: that the justice system is an indispensable pillar of our
democracy; that each of our citizens must be provided with equality before the law
secured by ready access to a fair process before the courts; that the achievement of
substantive justice through adjudication conducted by an independent and impartial
judiciary is the sine qua non of the rule of law and cannot be equated with or reduced
to a mere service akin to that providing by mediation, arbitration or any other form
of alternative dispute resolution process. If we stand by our principles we will shape
our justice system so that it can fulfil its proper role, and ensure that our
commitment to liberal democracy is never at risk of going out of style.
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