LITIGANTS IN PERSON: What can Courts do? A Special Event

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1 Faculty of Laws LITIGANTS IN PERSON: What can Courts do? A Special Event 18 June 2014 BACKGROUND PAPERS 1

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3 UCL FACULTY OF LAWS UCL Laws has been a leading centre of legal education for almost 200 years. Under the stewardship of current Dean, Professor Dame Hazel Genn, the Faculty continues to uphold its historical reputation as a world-class institution for education and research. It consistently ranks among the top law faculties in the UK for research, teaching and student satisfaction. The Faculty has world-class scholars that range across the full spectrum of legal issues. This research often has a profound real world impact, reflected in its national and international influence on government policy, law and legal practice. THE UCL JUDICIAL INSTITUTE The UCL Judicial Institute is the first and only centre of excellence for research and teaching about the judiciary in the UK. The Institute s purpose is to provide evidence-based understanding and intellectual leadership about the judiciary as a critical social institution and the process of judicial decision-making. The Institute carries out cutting-edge research on the judiciary and provides outstanding educational opportunities for students, practitioners, judges and those performing quasi-judicial roles. The Judicial Institute is led by co-directors Professor Dame Hazel Genn and Professor Cheryl Thomas and guided by an Advisory Board of distinguished jurists and scholars from both the United Kingdom and abroad. THE UCL CENTRE FOR ACCESS TO JUSTICE Located within the UCL Faculty of Laws, the Centre for Access to Justice combines the unique advantages of clinical legal education with the provision of pro bono legal advice to vulnerable communities, predominately in the areas of social welfare, employment and education law. UCL is unique in its incorporation of casework and social justice awareness into the law degree programmes we offer. Working in partnership with charity organisations and legal professionals, the Centre provides legal assistance to members of the local community while giving students an opportunity to gain hands on experience in meeting legal needs. Understanding the broader implications that a lack of access to justice can have, we take a holistic approach to resolving the legal problems our clients face. 3

4 LITIGANTS IN PERSON: WHAT CAN COURTS DO? UCL JUDICIAL INSTITUTE & THE UCL CENTRE FOR ACCESS TO JUSTICE SPECIAL EVENT WEDNESDAY 18 JUNE :30 19:00pm DENYS HOLLAND LECTURE THEATRE UCL FACULTY OF LAWS This Special Event brings together judges, academics and practitioners to examine what practical steps can be taken in court to secure effective access to justice for the increasing number of litigantsin-person (LIPs) using the courts. The courts and their adversarial procedures have, historically, developed and been designed on the basis that individual litigants are legally represented. Recent changes to legal aid and litigation funding mean that many people are no longer in a position to secure legal representation. Selfrepresentation is likely to increase over time, and may become the norm in certain categories of litigation, presenting significant challenges to litigants in person and to the courts. It is incumbent on the State, if it is to secure both the common law constitutional right of access to the court and the Article 6 ECHR right to fair trial, to reform the justice system and its procedures to enable LIPs to litigate effectively. These Background Papers are aimed at generating discussion at this UCL Laws Special Event around a number of specific issues: How to deliver effective, fair court proceedings involving LIPs? If there is a need for more inquisitorial proceedings, what does that involve and what skills must the judiciary develop? What should be the approach of the judiciary to McKenzie Friends, both paid and unpaid? How best to manage persistent and vexatious litigants? What measures have been effective in supporting LIPs in other jurisdictions? How should we assess the measures we have taken in order to improve their efficacy? How to track the growth of LIPs, their impact on the justice system, and the effectiveness of innovative measures? The discussion at this special event will be held under the Chatham House Rule*. * When a meeting is held under the Chatham House Rule participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed. 4

5 PROGRAMME Chaired by Professor Dame Hazel Genn, Dean UCL Laws and Co-Director of UCL Judicial Institute Panel Participants Lord Dyson, Master of the Rolls and Head of Civil Justice Lord Justice Ryder, Court of Appeal, England and Wales Judge Antoine Garapon, Institut des Hautes Etudes Sur La Justice, Paris Bonnie Rose Hough, Centre for Courts & Families, Administrative Office of the Courts of California Tea will be available in the Cissy Chu Common Room from 16:30. Denys Holland Lecture Theatre: 17:30 Introduction & Context Professor Dame Hazel Genn DBE QC 17:40 Responding to the challenge of LIPs Lord Dyson 17:50 Developments in Family Justice regarding LIPs Lord Justice Ryder 18:00 Inquisitorial Proceedings in France Judge Antoine Garapon 18:10 Building the capacity for justice system innnovation Bonnie Rose Hough 18:20 Questions to the panel and general discussion 19:00 Close, followed by Wine and canapes reception in the Cissu Chu Common Room 5

6 Biographical notes on the Panel Professor Dame Hazel Genn DBE QC Professor Dame Hazel Genn is Dean of the UCL Faculty of Laws and co-director of the UCL Judicial Institute. She is an expert on civil and administrative justice and has conducted numerous empirical studies of court and tribunal processes, including studies of the impact of representation on the outcome of tribunal hearings. She has a longstanding interest in access to civil justice and has written widely in this field. She has been involved for many years in developing and delivering training for the judiciary at all levels with a particular emphasis on the perspectives of court users. She served on the Judicial Appointments Commission from Lord Dyson, Master of the Rolls and Head of Civil Justice The Rt. Hon. Lord (John) Dyson was called to the bar in 1968, before being appointed a Queen s Counsel in From 1986 to 1993 he was a Recorder, and then from 1993 to 2001, he was a Justice of the High Court. While a High Court judge he was, from 1998 to 2001, the Presiding Judge for the Technology and Construction Court. In 2001 he was appointed a Lord Justice of Appeal, and from 2003 to 2006 he was deputy Head of Civil Justice. In 2010 he was appointed a Justice of the Supreme Court of the United Kingdom, a position he held until his appointment in October 2012 as Master of the Rolls. As Master of the Rolls, Lord Dyson is the second most senior judge in England and Wales, President of the Court of Appeal s (Civil Division) and the Head of Civil Justice for England and Wales. He is also Chairman of both the Civil Justice Council and Civil Procedure Rule Committee. In these various roles, he has overall judicial responsibility for the civil justice system, and as a consequence, for the successful implementation of the Jackson Costs reforms. He has taken a particular interest in justice system s ability to secure effective access to justice for litigants-in-person. In October 2012 he was closely involved in the commissioning of a Judicial Working Party to consider the effect that changes to legal aid provision would have on litigants-in-person and then to make recommendations for reform. Work flowing from that Working Party s report, which looked at procedural rule changes and made recommendations concerning the role played by McKenzie Friends, is still on-going. Lord Dyson, together with other members of the Judicial Executive Board, has broad oversight of that work. Sir Ernest Ryder Sir Ernest Ryder was called to the bar in 1981, before being appointed a Queen s Counsel in From he was a Crown Court Recorder, and from , a deputy judge of the High Court. In 2004 he was appointed a Justice of the High Court, and assigned to its Family Division. While a High Court judge he was, from , the presiding judge for the Northern Circuit. In 2013 he was appointed as a Lord Justice of Appeal. From Sir Ernest was the judge in charge of the modernisation of family justice. He was responsible for overseeing the practical changes to the system that were required for the establishment 6

7 of the new Family Court and its procedures and practices. In that regard he has been particularly involved with the development of active case management and the development, within that, of the new more inquisitorial approach to family justice (both through the rules and Practice Directions and through authoritative judicial decisions) that has been necessitated by the reduction in family legal aid and the subsequent growth in litigants-in-person in family proceedings. Judge Antoine Garapon Antoine Garapon, PhD, former juvénile court judge, has been Secretary- General of the Institut des Hautes Etudes sur la Justice (IHEJ) since 1991 and is also on the editorial committee of the journal Esprit. His publications include: Le Gardien des promesses, le juge et la démocratie (Odile Jacob, 1996), La République pénalisée (with Denis Salas, Hachette, 1996), Bien juger. Essai sur le rituel judiciaire (Odile Jacob, 1997), Que sais-tu de la justice? (a watercolour by Noëlle Herresnschmidt, for 8th graders), Et ce sera justice. Punir en démocratie (Odile Jacob, 2001, with Frédéric Gros and Thierry Pech), Albert Camus: Réflexions sur le terrorisme (a commentary on texts about terrorism written by Albert Camus and selected by Jacqueline Lévi-Valensi, Nicolas Philippe Publishing co., 2002), Des crimes qu on ne peut ni punir, ni pardonner (Odile Jacob, 2002), Juger en Amérique et en France. Culture juridique française et common law (with Ioannis Papadopoulos) (Odile Jacob, 2003), Les juges dans la mondialisation (with Julie Allard), Seuil, Peut-on réparer l histoire? Colonisation, esclavage, Shoah and La raison du moindre État. Le néolibéralisme et la justice (2010). In 2013, Antoine Garapon was commisionned by the French Minister of Justice to report on the role of judges and prosecutors (with Sylie Perdriolle and Boris Bernabé) : La Prudence et l Autorité (Odile Jacob, 2014). Antoine Garapon also directs the Bien commun collection at Michalon Publishing and hosts a weekly radio program, «Le bien commun», on Franceculture. He became Chevalier de la Légion d honneur in Bonnie Rose Hough Bonnie Rose Hough is the Managing Attorney for the Center for Families, Children & the Courts of the California Administrative Office of the Courts (AOC). The focus of her work is helping courts meet the needs of self-represented litigants. Her unit coordinates the California Courts Self-Help Website, which provides over 4,000 pages of legal and procedural information and referrals in English and Spanish. She oversees five grant programs providing $40 million in funding for legal services and court-based self-help programs. Bonnie oversees development of family law forms, rules and procedures, and document-assembly programs. She has edited an award-winning bench guide for judges handling cases involving self-represented litigants. Before joining the AOC, she was in private practice in family law and ran a legal services agency. 7

8 Participants List Mrs Justice Asplin High Court in England and Wales Mr Justice Baker High Court in England and Wales Dr Nigel Balmer Reader in Law & Social Statistics, UCL Faculty of Laws Sir Geoffrey Bindman QC Lady Justice Black Court of Appeal in England and Wales Mr Justice Blair High Court in England and Wales Richard Brant Researcher & Tutor, Faculty of Law, Lancaster University Lord Justice Briggs Court of Appeal in England and Wales Sir Stanley Burnton Chair, Access to Justice Working Group, JUSTICE Lord Carnwath UK Supreme Court Lord Clarke UK Supreme Court Mr Justice Cobb High Court in England and Wales Godfrey Cole UCL Judicial Institute Training Fellow Professor Lizzie Cooke Law Commissioner for England and Wales Andrea Coomber Director, JUSTICE Professor Judge Jeremy Cooper Upper Tribunal and of the first Tier Tribunal (Mental Health) Mr Justice Cranston High Court in England and Wales HH Judge Cryan Circuit Judge (South East) Mr Carlos Dabezies JUSTICE Lord Justice Davis Vice-President of the Queen s Bench Division Anna Donovan Lecturer, UCL Faculty of Laws Andrea Dowsett Assistant Secretary to the Civil Justice Council, Judicial Office Davina Duggan Policy Manager, Family Justice, Ministry of Justice Lord Dyson Master of the Rolls and Head of Civil Justice Rebecca Endean Director of Analytical Services, Finance, Assurance & Commerical Group, Ministry of Justice Sir Terence Etherton The Chancellor of the High Court Peter Farr Head of the Master of the Rolls Policy Team and Private Office Professor Trevor Farrow Osgoode Hall Law School, Toronto Dame Elizabeth Filkin DBE Amanda Finlay CBE The Low Commission Suzie Forell Senior Researcher, Law & Justice Foundation of NSW Mr Justice Foskett High Court in England and Wales HH Judge Freeland QC Central London Civil Justice Centre Judge Antoine Garapon Secretary General, Institut des Hautes Etudes Sur La Justice Professor Dame Hazel Genn DBE Dean, UCL Faculty of Laws Yvette Genn Cloisters Chambers Michael Greenslade Lead Adjudicator, Parking on Private Land Appeals Lord Justice Gross Senior Presiding Judge for England and Wales Caroline Hamilton Chief Parking and Traffic Adjudicator, PATAS Nick Hanning RWPS Law Mr Justice Hayden High Court in England and Wales Lord Hodge UK Supreme Court Bonnie Rose Hough Managing Attorney for the Centre for Families, Children and the Courts of the California Administrative Office of the Courts of California 8

9 Lord Hughes Lord Justice Jackson District Judge Tim Jenkins Dr Jacqui Kinghan Robin Knowles CBE QC District Judge Margaret Langley Lord Justice Laws District Judge Chris Lethem Sir Brian Leveson Sir David Lloyd Jones Andrew Lockley Lady Justice Macur HH Judge Madge Judith March Alexandra Marks Lord Justice McFarlane HH Judge Mitchell Professor Richard Moorhead Sir James Munby Joe Murphy Ruchi Parekh Mrs Justice Parker HH Judge Phillips Professor Pascoe Pleasence Nigel Pleming QC Judge Isobel Plumstead Professor Judith Resnik Shiva Riahi Lord Justice Richards Jenny Rowe The Lord Rt Justice Hon the Ryder Lord Neuberger The Dr John Rt Hon Sorabji the Lord Hope The Rt Hon the Lady Hale The Lord Rt Justice Hon the Sullivan Lord Mance The Lord Rt Sumption Hon the Lord Kerr The Alastair Rt Hon Tallon the Lord Clarke The Judge Rt Carol Hon the Taylor Lord Wilson The Professor Rt Hon Cheryl the Lord Thomas Sumption The Lord Rt Thomas Hon the Lord Carnwath The Dr Tatiana Rt Hon Tkacukova the Lord Collins HH Judge Walden-Smith Greg Watkins The Teresa Hon Williams Mr Justice Adrian Saunders Sir Penny Michael Williams Birt Richard Lord Wilson Collas Deemster Professor Adrian Doyle Zuckerman UK Supreme Court Court of Appeal in England and Wales County Court and Family Court at Brentford Director of Clinical Legal Education, UCL Faculty of Laws 3-4 South Square Chair of the London Association of District Judges Court of Appeal in England and Wales South Eastern Circuit President of the Queen s Bench Division Chairman, Law Commission JUSTICE Court of Appeal in England and Wales Inner London Crown Court Director, Personal Support Unit, Royal Courts of Justice Judicial Appointments Commission Court of Appeal in England and Wales Central London County Court/Bromley County Court Director, UCL Centre for Ethics and Law President of the Family Division Ministry of Justice Legal Researcher, JUSTICE High Court in England and Wales Director of Training, Judicial College UCL Faculty of Laws 39 Essex Street Norwich Combined Court and Secretary, Council of Participants Circuit Judges Yale Law School Acting Manager, UCL Centre for Access to Justice Deputy Head of Civil Justice Chief Executive, UK Supreme Court President Court of Appeal of the UK in England Supreme and Court Wales Deputy Principal President Legal Adviser of the to UK the Supreme Lord Chief Court Justice and Justice Master of the UK Rolls/UCL Supreme Judicial CourtInstitute Justice Senior President of the UK of Supreme Tribunals Court Justice UK Supreme of the Court UK Supreme Court Justice Court Chairman, of the UK Greenwich Supreme Court Justice Regional of Judge the UK (East Supreme London) Court Justice Co-Director, of the UCL UK Supreme Judicial Institute Court Justice Lord Chief of the Justice UK Supreme of England Court and Wales retired Centre Justice, for Forensic UK Supreme Linguistics, Court Aston University Specialist Senior Circuit Judge (Chancery), Central London Civil Justice Centre Family Business Improvement, HMCTS Caribbean Director, Social Court Research of Justice & Policy, Nuffield Foundation Bailiff Magistrates of Jersey Association Family Courts Committee Bailiff UK Supreme of Guernsey Court First Professor Deemster of Civil and Procedure, Clerk of the University Rolls, Isle of of Oxford Man The Rt Hon Lady Justice Hallett DBE The Rt Hon Lord Justice Gross Court of Appeal, Vice President Queen s Bench Division Court of Appeal, Deputy Senior Presiding Judge 9

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11 BACKGROUND PAPERS Litigants in Person: What can courts do? 11

12 BACKGROUND PAPERS Table of Contents Introduction 14 Part 1: Developing a more inquisitorial approach 15 Introduction 16 Extracts from: Air Canada and Others Appellants v Secretary of State for Trade and Another [1983] 2 A.C. 394 Al Rawi & Ors v The Security Services & Ors [2012] 1 AC 531 Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041 The Family Justice Modernisation Programme, 4th Update The Judicial Working Group on Litigants in Person: Report Thomas CJ, Reshaping Justice Mole v Hunter [2014] EWHC 658 (QB) Re R (a child) [2014] EWCA Civ 597 C (a child) [2013] EWCA Civ 1412 Re W (a child) [2013] EWCA Civ 1227 Re D [2014] EWCA Civ 315 Re CJ v Cardiff City Council [2011] EWCA Civ 1590 Part 2: McKenzie Friends 30 Introduction 31 Extracts from: Judicial Working Group on Litigants in Person Report Report: Fee-Charging McKenzie Friends Practice Guidance (McKenzie Friends: Civil and Family Courts) [2010] 1 WLR 1881 Court of Session Rules, rules 12A and 12B Part 3: Managing persistent and vexatious litigants 44 Introduction 45 Extracts from: Clarke MR, Vexatious Litigants & Access to Justice: Past, Present, Future Genn, Do-it-yourself law: Access to justice and the challenge of self-representation C.J.Q. 2013, 32(4) Lester, The Vexatious Litigant Part 4: LIPs: Challenges and Practical Solutions 54 Introduction 55 Extracts from: Williams, Litigants in person: A literature review Australian Productivity Commission, Access to Justice Arrangements Macfarlane, The National Self--Represented Litigants Project: Identifying and Meeting the Needs of Self--Represented Litigants (Final Report) Dyson MR, Advances in Open Justice in England and Wales 12

13 Sorabji, Tinkler v Elliott: Promptly setting aside a judgement given in a party s absence Handling Cases Involving Self-Represented Litigants: A Benchguide For Judicial Officers (Judicial Council of California Administrative Office of the Courts) A Guide to Bringing and Defending a Small Claim The Interim Applications Court of the Queen s Bench Division of the High Court - A Guide for Litigants in Person Interim Applications in the Chancery Division: A Guide for Litigants in Person CLIPS - Chancery Bar Litigant in Person Support Scheme Part 5: Tracking the growth and impact of LIPs and the efficacy of reforms 94 Introduction 95 Extracts from: Genn, Do-it-yourself law: Access to justice and the challenge of self-representation C.J.Q. 2013, 32(4) 13

14 BACKGROUND PAPERS Litigants in Person: What Can Courts Do? Introduction The focus of this special event is how the English and Welsh civil justice system may have to change in order to better enable litigants-in-person (LIPs) to secure effective access to justice. It is hoped that the various Background Papers will highlight some initiatives that have already been taken and stimulate a discussion of what further practical reforms might be implemented in the future. Organisation of the Papers Part 1, Developing a more inquisitorial approach, focuses on the issue of whether, and if so to what extent, the justice system may have to modify its traditional commitment to adversarial process. It looks at how a more inquisitorial approach is being developed in family proceedings. In Part 2, McKenzie Friends, the materials set out reform recommendations made by both a Judicial Working Party and the Legal Services Consumer Panel. It sets out the present approach to McKenzie Friends by the English and Welsh courts and contrasts them with the approach recently taken in Scotland. In Part 3, Managing persistent and vexatious litigants, the papers consider present measures used to protect the court from abuse of process. They outline the state of empirical evidence available regarding persistent and vexatious litigants and current understanding of psychiatric issues that may underpin their behaviour. The papers also consider what practical steps might be taken in respect of such litigants Part 4, LIPs: Challenges and Practical Solutions focuses on practical steps that might help LIPs navigate the justice system. It looks at specific recommendations based on empirical studies of LIPs experiences, as well as of other individuals (court staff, lawyers, judges). Part 5, Tracking the growth and impact of LIPs and the efficacy of reforms, outlines the steps that have been taken and which ought to be taken to measure LIP numbers, their effect on the justice system and how well reforms aimed at improving their ability to secure effective access to justice achieved that end. 14

15 PART 1 Developing a more inquisitorial approach 15

16 Part 1: Developing a more inquisitorial approach Introduction The materials in Part 1 consider the extent to which the justice system should modify its traditional commitment to an adversarial process in order to increase effective access to justice for LIPs. In particular, it considers whether, and the extent to which, the justice system may adopt a more inquisitorial or investigatorial approach to the pre-trial and trial process. The first group of materials sets out the court s traditional approach to inquisitorial process. The Air Canada and Al-Rawi decisions note the adversarial nature of English procedure and how an inquisitorial approach to trial procedure is impermissible. Al-Medenni exemplifies the traditional approach through setting out the extent to which the court can go behind the way in which the parties have framed the litigation. The second group of materials deals with recent developments that call for a reconsideration of the traditional approach. Developments in family justice have, for instance, explicitly endorsed, and then developed a more inquisitorial approach to litigation and have done so in order to ensure effective access to justice for LIPs. They are an express response to the growth in LIPs. Additionally, reformers have considered whether similar reforms ought to be implemented in so far as civil justice is concerned. A Judicial Working Party has, in this regard, called for consideration of reforms to the Civil Procedure Rules such as the introduction of a dedicated rule or rules relating to LIPs, or the introduction of a more inquisitorial form of process where LIPs are concerned. Thomas CJ s lecture further raises these considerations, but also calls for consideration of the practical consequences of such reforms i.e., their impact on court resources or on other litigants. What may look like a panacea may bring with it problems of its own. The third group of materials contains recent case law developments. Mole v Hunter suggests that there is no need for civil procedure rule reform, as there is sufficient flexibility in the extant rules to secure effective access to justice for LIPs. It, and Re R, equally echoes Thomas CJ s concerns regarding the impact that a more inquisitorial process is, and may have, on court resources. Re C and a number of other such cases set out the nature of the more inquisitorial approach that is being developed in family proceedings. They canvass the statutory basis for such an approach, and outline its development from public law to private law proceedings, while setting out a number of ways in which it operates. It remains an open question as to whether and how civil process may develop in similar ways. 16

17 Developing a more inquisitorial approach (1) The traditional approach Extract from Air Canada and Others Appellants v Secretary of State for Trade and Another [1983] 2 A.C. 394 Lord Wilberforce, In a contest purely between one litigant and another, such as the present, the task of the court is to do, and be seen to be doing, justice between the parties - a duty reflected by the word fairly in the rule. There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if the decision has been in accordance with the available evidence and with the law, justice will have been fairly done. It is in aid of justice in this sense that discovery may be ordered, and it is so ordered upon the application of one of the parties who must make out his case for it. If he is not able to do so, that is an end of the matter. There is no independent power in the court to say that, nevertheless, it would like to inspect the documents, with a view to possible production, for its own assistance. Extract from Al Rawi & Ors v The Security Service & Ors [2012] 1 AC 531 Lord Dyson [21] But even in an area which is not the subject of statute or statutory procedural rules, there are limits to the court s inherent jurisdiction to regulate how civil and criminal proceedings should be conducted. In my view, there is considerable force in what Professor Martin Dockray said in The Inherent Jurisdiction to Regulate Civil Proceedings (1997) 113 LQR 120, 131:.a matter which is procedural from the position of an applicant may be constitutional in the eyes of the respondent. The fact that procedural law can be described as subordinate or adjectival because it aims to give effect to substantive rules should not conceal the truth that procedures can and do interfere with important human rights, while the means by which a decision is reached may be just as important as the decision which is made in the end. Where procedure is as important as substance, procedural change requires the same degree of political accountability and economic and social foresight as reform of an equivalent rule of substantive law. Major innovations in procedural law should therefore be recognised as an institutional responsibility, not a matter on which individual judges should respond to the pleas of particular litigants. Procedural revolutions should appear first in statutes or in the Rules of Court, not in the law reports. [22] For example, it is surely not in doubt that a court cannot conduct a trial inquisitorially rather than by means of an adversarial process (at any rate, not without the consent of the parties) or hold a hearing from which one of the parties is excluded. These (admittedly extreme) examples show that the court s power to regulate its own procedures is subject to certain limitations. The basic rule is that (subject to certain established and limited exceptions) the court cannot exercise its power to regulate its own 17

18 procedures in such a way as will deny parties their fundamental common law right to participate in the proceedings in accordance with the common law principles of natural justice and open justice. To put the same point in a different way, the court must exercise the power to regulate its procedure in a way which respects these two important principles which are integral to the common law right to a fair trial. Extract from Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041 Dyson LJ [21] In my view the judge was not entitled to find for the claimant on the basis of the third man theory (one which the judge had suggested to the parties but which had not been pleaded by the claimant). It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other. The function of the judge is to adjudicate on those issues alone. The parties may have their own reasons for limiting the issues or presenting them in a certain way. The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision. One consequence of this may be that the judge is compelled to reject a claim on the basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. Such an outcome may be unattractive, but any other approach leads to uncertainty and potentially real unfairness. [22] The starting point must always be the pleadings. In Loveridge and Loveridge v Healey [2004] EWCA Civ 173, Lord Phillips MR said this at paragraph 23: In McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 Lord Woolf MR observed: Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between the parties. It is on the basis of the pleadings that the parties decide what evidence they will need to place before the court and what preparations are necessary before the trial. Where one party advances a case that is inconsistent with his pleadings, it often happens that the other party takes no point on this. Where the departure from the pleadings causes no prejudice, or where for some other reason it is obvious that the court, if asked, will give permission to amend the pleading, the other party may be sensible to take no pleading point. Where, however, departure from a pleading will cause prejudice, it is in the interests of justice that the other party should be entitled to insist that this is not permitted unless the pleading is appropriately amended. That then introduces, in its proper context, the issue of whether or not the party in question should be permitted to advance a case which has not hitherto been pleaded. [23] In the present case the claimant s pleaded case was that Mr Braich and no one else placed the reel on the machine. If the claimant wished to advance the third man theory as an alternative to her primary case, then she had to seek permission to amend her pleadings. It may be that she had sound tactical reasons for not taking this course. To advance such an alternative case was inconsistent with 18

19 the claimant s evidence, and might in any event have been interpreted as a sign of weakness. There was no hint of the third man theory in the witness statements, the way in which the case was opened or in the evidence of the claimant s witnesses. I accept that there was a rather faint-hearted espousal of the theory by Miss Harmer in her closing submissions, but in my judgment it was by then far too late for the claimant to take the point. (2) A new inquisitorial approach Extract from Ryder J, The Family Justice Modernisation Programme, 4th Update (Judicial Office) A statement of principle about inquisitorial case management is being considered. There is a project to identify the court s expectations of unrepresented parties and vice versa so that cases involving unrepresented parties are not unfairly prejudiced in terms of their process. This will involve the provision of significant new materials to assist both represented parties who appear against those who are unrepresented and unrepresented parties to understand the expectations of the court and to abide by its procedures and practices. As part of the modernisation programme we intend to pursue a separate project which looks at private law reforms. Quite apart from a careful reconsideration of the court s case management processes having regard to the number of litigants who may fall out of scope of public funding and the benefits of mediated resolutions, there are primary legislative changes proposed by Government which include the concept of shared parenting and amendments to section 8 of the 1989 Act.... To return to the 26-week pathway in public law proceedings... the legal environment that remains is a welfare i.e. inquisitorial environment not an adversarial fact finding environment. The problem to be solved is essentially placement which may of course include the success of rehabilitation, the feasibility of kinship options and consequential contact. Even as respects planned and purposeful delay cases decisions can be made in principal within 26 weeks. Courts will be encouraged to identify whether in principle a parent will be in a position within the timetable for the child to resume care. If that decision is made within 26 weeks it follows that planned and purposeful delay might include the use of court based supervision under validated and research based options such as the FDAC court whose success has been clearly established. Within this welfare environment it is likely that the court will start from the proposition that only such expert evidence as is necessary to decide a relevant issue upon which the ultimate decision is based should be ordered. Changes to the rules and practice directions relating to experts will make provision for this approach. In standard track cases it is likely that if any expert is needed that expert will be a single expert for a party or one agreed expert. This is not a quasi-inquisitorial approach. It is a full inquisitorial approach with the court in the driving seat in relation to the issues to be tried and the evidence which is necessary for that hearing to be conducted fairly. It is anticipated that within the review of rules and practice directions, consideration will be given to a system for urgent case management appeals. 19

20 Extract from The Judicial Working Group on Litigants in Person: Report (Judicial Office) (July 2013), p.31 (http://www.judiciary.gov.uk/wp-content/uploads/jco/documents/reports/lip_2013.pdf ) The Judicial Office should undertake, urgently, further work to assess the merits of three proposals: Provision of a dedicated rule that makes specific modifications to other rules where one or more of the parties to proceedings is a litigant in person. Introduction of a specific power into CPR Rule 3.1 that would allow the court to direct that, where at least one party is a litigant in person, the proceedings should be conducted by way of a more inquisitorial form of process. Introduction of a specific general Practice Direction or new Civil Procedure Rule that would, without creating a fully inquisitorial form of procedure, address the needs of litigants in person to obtain access to justice while enabling courts to manage cases consistently with the overriding objective. Extract from Lord Thomas CJ, Reshaping Justice, (Justice Lecture) (3 March 2014) [29] We have to keep an open mind even on radical options. For example, to some a change to a more inquisitorial procedure seems like the obvious or the only solution to the present situation we find ourselves in with the increase in litigants-in-person and the need to both secure a fair trial for all whilst doing so within limited and reducing resources that have to be distributed equitably amongst all those who need to resort to the courts. It might be said by them that to attach to it the label of inquisitorial was doing it a disservice, as it was really little more than the active interventionism characteristic of much pre-trial procedure, case and trial management. But I think it is right to refer to it as inquisitorial, because the essence of the change would be a much greater degree of inquiry by the judge into the evidence being brought forward. [31]... Questions such as how is the justice system to operate an inquisitorial process effectively need to be considered. What effect would that have on the ability to give other cases their fair share of the court s time and resources? What consequences would it bring to, for instance, the efficient use of judicial time? Would an increased workload mean we would need more judges, or need to introduce a new cadre of junior judges? What effect would it have on the structure of our courts, and courts administration? What would be its cost? [32] These questions can all be multiplied, not least when we they have to be considered in a wider context. Continuing reform of the legal profession as a practical consequence of the 2007 Legal Services Act, amongst other things. The nature of and consequences of modern IT provision to the courts, on court processes, not least the management of cases, and on legal practices. Simplification of procedure for lower value cases and its consequences. All these, and many more issues, are interrelated. We cannot look at potential options for reform in isolation. 20

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