In March 1994, Lord Woolf, a senior Law Lord, was appointed by the then Lord Chancellor to carry out a review of the current rules and procedures of the civil courts in order ‘to improve access to justice and to reduce the cost of litigation; to reduce the complexity of the rules and modernise terminology; to remove unnecessary distinctions of practice and procedure’.

In little more than a year, Lord Woolf published an interim report, and his final report was published in July 1996. Such was the Government's desire to make progress on the recommendations of the report that in February of the following year the Civil Procedure Act 1997 received the Royal Assent. The Act sets up a new Civil Procedure Rule Committee with power to make rules governing the practice and procedure of the Court of Appeal (Civil Division), the High Court and the county courts. The old Supreme Court and county court rule committees disappear and a new, unified, set of comprehensive Civil Procedure Rules replaces both the old Rules of the Supreme Court 1965 and the County Court Rules 1981.

Following the change of Government in May 1997, the new Lord Chancellor asked Sir Peter Middleton, a former Treasury official, to report on the proposals for reform and to do so within an extremely short period in order that momentum might not be lost. In the meantime, in October 1996, Sir Jeffery Bowman, an accountant with a law degree, was appointed to chair a review of the Court of Appeal (Civil Division) and his report appeared in September 1997.

A single jurisdiction: a divided procedure

The civil procedure introduced into the unified Supreme Court as a result of the nineteenth-century reforms, whose principal characteristics have survived for so long, allowed for two principal modes for the conduct of civil litigation. In the procedure by writ, written pleadings and the disclosure of relevant documents were required, and the evidence - generally oral evidence - was given at the trial. In the procedure by originating summons, on the other hand, formal pleadings were not required, a judicial order was necessary if discovery was to be made, and the evidence was mainly given in written form by affidavit. Originating summons procedure was not to be used where serious issues of fact between the parties were anticipated, but where it emerged that the choice of this procedure had been wrongly made, the proceedings could simply be ordered to be continued as if begun by writ. There was no impenetrable barrier between the two modes. Each was a variant of a single procedure - ‘procedure by action’ or simply ‘action’.

Under the C.P.R., there is only one form of originating process - the ‘claim form’ - and the older terminology has been abandoned, but the distinction between the two modes of procedure is preserved. What is now known as ‘Part 8 procedure’ is broadly equivalent to the originating summons.

Introduction

It has been rightly said that lawyers must learn to appreciate some of the more basic assumptions that are made by their counterparts in other countries and of the consequences of them. Common lawyers must not, of course, fall into the trap of supposing that all continental systems are the same, but Western European countries do have a common heritage in the Romano-canonical procedure of Byzantium. This makes it possible to differentiate on a broad scale between common law and continental systems and to suggest that, in terms of assumptions, the fundamental difference is that the common law system assumes that there will be a trial while the continental assumes no such thing. In other words - and it really is ‘in other words' - the fundamental division between the two principal families of procedural law of the Western world is that between those legal systems which do - or did in the past -make use of the civil jury and those to which the civil jury has always been unknown.

The significance of this to the fact-finding process as such lies in the fact that the members of a jury can be brought together only for a single session; once it came to be settled that the jury must decide on the basis of materials presented to it in court - largely, if not entirely, by word of mouth – the essential characteristic of the trial was established.

Introduction

In his masterly Hamlyn Lectures, Sir Jack Jacob proposes that 'the true relation between substantive and procedural law should be redefined in terms of the primacy of substantive law and the supremacy of procedure. . . The supremacy of procedure is the practical way of securing the rule of law, for the law is ultimately to be found and applied in the decisions of the courts in actual cases.’ This proposal is of interest for two reasons in particular.

The first of these reasons is, simply, that the proposal should have been made at all. It is true that writers on jurisprudence devote a few pages to the relationship between substantive and procedural law4 and educated English lawyers are aware of Maine's statement that ‘substantive law has at first the look of being gradually secreted in the interstices of procedure’, but in general most people are content to adopt, knowingly or not, Bentham's description of procedure as the course taken for the execution of the laws, and Collins M.R.'s statement that ‘the relation of the rules of practice to the work of justice is intended to be that of handmaid rather than mistress’. Something more is, no doubt, required in certain specific contexts, for example where it is necessary to classify a rule as procedural or not for the purposes of the conflict of laws, or where the validity of a rule of court made under the general rule-making power is in question.

Introduction

In an earlier chapter it was said to be almost an article of faith on the part of common lawyers that, because their civil procedure is ‘adversarial’, it is therefore superior to the ‘inquisitorial’ system which they believe to exist elsewhere. In this chapter, following a brief account of the legacy of the jury as the source of our enduring loyalty to the adversary system, attention will be directed to a number of developments which occurred before, and are not superseded by, the Woolf reforms and which, it is believed, have a tendency to undermine the tenets of the adversary system as traditionally understood. The final chapter considers the impact of the reforms following that report.

Three legacies of the jury

The great period of reform of the nineteenth century reached its culmination on 1 January 1876, when the Supreme Court of Judicature Acts 1873-5 came into force. Those Acts laid the foundation of the judicial organisation and created the structure of civil procedure which have endured to the present time, but they did not mark a complete break with the past. Certainly our civil procedure was cleansed of its worst technicalities and some elements of the old equity procedure found a place in the new uniform procedure, but the underlying idea on which the new procedure was constructed was that of the old common law, with its insistence that questions of fact must be decided by a jury.

Part I

If a pebble is dropped into a pool of water, ripples will spread on the surface of the water; how far the ripples will spread and with what strength depends on a variety of factors, but there will always be a ripple of some kind. The same is true of a decision of a court of law. Notwithstanding what Professor Chayes has accurately described as the bipolar character of traditional civil litigation,2 it is almost inconceivable that the outcome of a civil action will affect no one but the parties to it: unless an exception can be found to John Donne's famous axiom that ‘No man is an Island, entire of itself’ - and such a man, if he exists, is unlikely to bring an action in the first place - the ripple effect even of, say, a simple decision that an individual defendant must pay a sum of money by way of damages to an individual plaintiff will extend to their respective families and beyond. It is not wholly absurd to say of such a case that, for example, the retail traders, the banks, and so on with whom the parties have dealt or may deal in the future have an ‘interest’ that an action by an injured individual may protect; and, if they do, that interest is certainly diffuse and fragmented, even if it is not collective.

The subject matter of this chapter lies at the heart of the judicial process, and, perhaps for that reason, is one to which the rules of positive law seldom refer in explicit terms. It is more intractable than many: in the last resort it is concerned with the mental processes of the judge himself, and those processes cannot ordinarily be known save to the extent that the judge is willing to disclose them in his exposition of the reasons for his decision or in the course of the proceedings leading up to his decision. Nor is it possible rigidly and accurately to enforce such rules as there may be which purport to restrict use by the judge of knowledge that he happens to have: only an Orwellian ‘Thought Police’ equipped with futuristic ‘thought detection’ devices could do that. For the time being, only two means of control exist - a judge possessed of knowledge of which he cannot make legitimate use in a given case can be disqualified, and a decision which is seen to be based in part on such knowledge can be set aside by a court of appeal or cassation.

The inadequacy of these controls is shown in the report for France.

There is a presumption that the judge knows the law. There is no need, in theory, for the parties to provide him with the materials and information necessary for the decision of questions of law. No similar presumption is possible in relation to questions of fact. Jura novit curia may be plausible; facta novit curia is absurd. Nevertheless, as has been pointed out in a previous chapter, at the end of the day, decisions of fact are as much for the judge as are decisions on the applicable law. It is the purpose of this chapter to examine the way in which French and English law, respectively, deal with the particular problem that is raised when the judge is called upon to decide technical questions, that is, questions of fact which, because of their scientific, technical or technological character, cannot be understood or resolved by a non-specialist without the assistance of an appropriately qualified specialist. Before turning to that, however, it is necessary to say something about the nature of questions of fact in general.

Questions of fact

It is a general principle as much of French as of English law that each party must prove the facts necessary to the success of his claim or defence. Since nothing is literally ‘proved’ in litigation, however, what is meant by the general principle is that the party carrying the burden of proof must discharge it by producing materials - evidence or proofs -which will persuade the judge to decide the issue in his favour.

It is one thing to say what civil litigation is; it is another to say what are the purposes which the institution of civil litigation exists to serve. It is interest in the latter — which are not the same as the purposes of those who engage in litigation — that is one of the principal factors connecting the succeeding chapters of this book. This chapter looks to what civil litigation is.

It might be thought that the phrase ‘civil litigation’ and its companions, ‘civil proceedings’ and ‘civil procedure’, are well enough known to stand without explanation. All three form part of the everyday language of lawyers, and even Parliament has been prepared to use an unbroken circle by way of definition, as it did, for example, in the Civil Evidence Act 1968: ‘civil proceedings’, it is said, ‘includes in addition to civil proceedings in any of the ordinary courts of law’, certain other ‘civil proceedings’.

This kind of thing may be harmless when only one legal system is in contemplation; it is unlikely that a French lawyer would have any more trouble within his own system with the phrase ’procedure civile’ than his English counterpart has with ‘civil procedure‘. Indeed, the French lawyer has a code of civil procedure, now the nouveau code de procedure civile, and for him civil procedure is the subject matter of that code. What is more, an English lawyer would almost certainly recognise as civil the kind of proceedings regulated by that code and recognised as such in France.

The individual reports used in preparation of the original version of this chapter reveal so great a variety of appellate systems that it is difficult to find common ground on which to base a comparative account of the problem of overload and its management. There are systems which distinguish sharply between appeal and cassation; there are federal systems in which the federal supreme court acts as the final court of appeal for the whole country and others in which it acts only in federal cases; there are systems which, though unitary, have separate jurisdictions for private and for public law cases, and others with a unified hierarchy of courts: there are systems with one tier only after first instance, and others with two or even more; there are systems in which the appeal has a suspensive effect and others in which first instance judgments are enforceable as soon as given.

Even more striking than these specific differences is the difference in the volume of appellate work in countries of roughly comparable size, and in their attitudes to the right of appeal and to possible limitations of it. So, to take a dramatic example, in England the House of Lords has jurisdiction in public as well as private law, has a mere twelve full-time judges, is not divided into chambers, is a court of appeal not cassation, and delivers judgment in about fifty civil cases a year.

The Royal Commission on Legal Services, which reported in 1979, was not called upon to review procedure or the administration of justice. It nevertheless received so much evidence on these subjects that it saw fit to publish a summary of that evidence and to recommend that ‘a full appraisal of procedure and the operation in practice of our system of justice, in particular in all civil courts’ should be carried out. Since then, extra urgency has been given to the reform of civil procedure, both generally and in some of its more specialised aspects, and in 1985 the then Lord Chancellor set up the Civil Justice Review which, after wide consultation, produced its Report in 1988. Following on that, numerous changes of practice in the High Court and the Court of Appeal were introduced by legislation, by Practice Direction and simply by change in judicial practice. Even this was not enough, however, and in 1994 the Lord Chancellor appointed Lord Woolf to review the rules and procedures of the civil courts with a view, principally, to improvement in ‘access to justice’.

It is unnecessary to look further for evidence of continuing dissatisfaction with the administration of justice in England; it appears that when Pound said, in 1906, that ’dissatisfaction with the administration of justice is as old as law’, he could have added ‘and will continue until law ceases to exist’.