The Gazette 1984

SEPTEMBER1984

GAZETTE

assumption, namely, that it is the duty of the State to provide enough courts and enough judges to determine all disputes brought before them. I think that the duty is rather different. It is to ensure that means exist for the settlement or determination of civil disputes in accordance with the rule of law and that such means are adequate in quality, quantity and accessibility. Courts and judges are not the only available means of determining civil disputes. Indeed, as is recognised, they are not always the best means. Hence the network of specialist statutory tribunals which has grown up. However, even then it seems to be assumed that lawyers must be involved, at least as chairmen. And it is the shortage of suitable lawyers which is one of the main problems. So I would also challenge the assumption that lawyers are a necessary part of the process. It is a challenge which can be very easily sustained, for there is a wide range of disputes in which justice is in fact done and the disputes determined by experienced arbitrators who are not lawyers. There are very many disputes which turn on issues of fact or very basic or limited issues of law. In such cases, what is required of the disputes settler is not a wide knowledge of the law, but common sense, a judicial approach and, sometimes, knowledge of that corner of the law which is relevant to that type of dispute. This is, of course, actually what is required of justices of the peace in the field of criminal justice. Ought we not to be considering enlisting the assistance of laymen as arbitrators or civil justices of the peace to supplement the work of the courts and the judges? Any scheme for using laymen could and should be coupled with a review of the way in which we use the skills of our judges. You have only to look, even superficially, at the work being done by the High Court, to see that a large proportion could be done by county courts more cheaply and, if some of the county court work was taken over by arbitrators, more quickly. The present system, which in essence allocates work to different courts by reference to the sum in dispute, just does not work. It should be replaced by a system whereby the appropriateness of the case to a particular type of court is assessed by the parties, the court issuing guide-lines which can be changed from time to time and retaining the power to order trail before a tribunal other than that selected by the parties. This system already operates in relation to the Commercial Court. It works well and should become universal. Procedural Reforms There are many procedural reforms which can be made. Do we need pleadings, should we not limit the amount of paper which modern litigation generates, do we need opening speeches by counsel and so on? I only want to refer to one matter, which is never mentioned and is worthy of consideration. In quite a large number of actions, the real issue is not whether the claimant is entitled to damages, bu the amount of the damages. Each party has an exaggerated view which becomes more exaggerated the more he thinks about it. The legal advisers on each side attempt valiantly to narrow the gap and the procedure for paying into court or making offers assists. However, in the context of industrial wage- bargaining, the Japanese have come up with a novel idea which has, I believe, been accepted by one of their UK factories. It is worthy of consideration in other contexts. It is known as the 'flip flop' decision.

It works this way. Each party has to state the amount which he expects to be awarded or, as the case may be, be ordered to pay. This should be, but, of course, is not by any means the same as the amount which the claimant is claiming or that which the respondent is prepared to concede. The court is unaware of the parties' forecasts until it has decided what is the appropriate figure to award. It announces this figure and then gives judgment not for that sum, but for the sum forecast by one of the parties which is nearest the court's figure. The practical result of such a system would be that the parties' forecasts would be highly realistic and very near to each other. And the result of that would be a spate of settlements. It is worth more than a passing thought. May I end by wishing you success with your deliberations. •

* This article is an edited version of an address given to the Law Society of England and Wales' National Conference at Bournemouth. The full text of the address is published in the Law Society's GAZETTE of 31 October. 1984 at p. 2985. It is reprinted here with kind permission of the author and publisher.

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