The Gazette 1990

GAZETTE

DECEMBER 1990

members to face the future in a self-critical way, dedicating itself to the provision of a quality service in return for a proper reward. The next two to three years should see out " t he main battles between the Bar and the Law Society". He thinks that, when this is over, serious consideration should be give to "abolishing both the Law Society and the General Council of the Bar" and replacing them with a single legal body encompassing bar- risters, solicitors, legal executives and maybe even licenced con- veyancers. Some practitioners on this side of the water may well be surprised that a General Secretary could publicly air such views but I had the impression, from the res- ponse his address received and also knowing the reputation that John Hayes enjoys in the profession, that many endorse his view of his own role as that of an ideas man and a person whose job it is to act as a catalyst for new thinking. Ken Pritchard echoed much of what Tony Holland said and called for the " f u s i o n" of the t wo branches of the profession in Scotland. He predicted that there would be a united legal profession in the United Kingdom in 25 years, though regional differences might remain. The two branches of the profession should be united to face the future, to face also competition and, indeed, the Government. In an even more radical vein, from the Scottish prospective, Mr. Pritchard said distinctions between legal sys- tems would have to be viewed in the European Community context. Conceding that this kind of talk was heresy for many Scots lawyers, he said " I know that the law is part of our Scottish National Heritage but the world is getting smaller". He has a broadly similiar view of the role of Law Societies as John Hayes though, of course, the issues facing the legal profession in Scotland are somewhat different from those in England. Ken liberally dispensed his own keen brand of Scottish humour in the course of his contribution, which was serious though at times amusing, and rounded it off with a preview of some of the new thirty second television commercials which the Scottish Law Society will shortly be launching under the general theme of " I t 's never too early to consult your solicitor".

Civil Litigation in the 90s For many, the session on Saturday morning, 20th October, chaired by the Lord Chancellor, Lord Mackay of Clashfern, on civil litigation was perhaps the most interesting. A very large proportion of the audience seemed to be lawyers who specialised in civil litigation and it appeared that few of them were disappointed with what they heard. The Lord Chancellor con- fined himself primarily to a few introductory remarks, presented the speakers, and chaired the sub- sequent open forum discussion. The principal speaker was the Right Honourable Lord Griffiths who is a Lord of Appeal in Ordinary since 1985 and who has been a member of the Chancellor's Law Reform Committee since 1976. He has just recently been appointed to oversee the introduction of reforms to civil litigation procedures in the courts. Outlining the shape of things to come, he said that the principal objective of the reform measures would be to outlaw the sytem of "trial by ambush" which has for so long dominated the common law approach to civil litigation. This would be achieved by having more informative pleadings, early dis- covery and all witness statements disclosed. "Bluff and guesswork" would be completely out, he said. The great majority of civil cases turn on issues of fact not law and, in the new order, lawyers will no longer be able to hold their cards as close to their chests as heretofore. Both sides will be able to review all the evidence before the trial and assess better their chances of success. This will also have the e f f ect of encou r ag i ng more settlements. The reforms will also affect existing judicial practices. The judge will review all evidence before the trial and will hold a brief discussion with lawyers for both sides to identify the crucial issues that will require oral argument. Lawyers will be confined to a recital of skeleton arguments citing authorities; the present practice of long, one-sided recitals of facts will be abolished. Lord Griffiths recognised, how- ever, that some complex cases would not readily yield to the new approach and these cases would have to continue to receive special

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individual treatment. The judges, he said, would be empowered to compel adherence to the new system and their principal sanction would be to disallow costs where unnecessary issues had been raised. The system would continue, however, to maintain the Socratic dialogue, recognising the value of cross-examination in elucidating the truth. Lord Griffiths said that the truth would, in the future as in the past, "leak out of a lying affidavit like water from a leaking bucket". Other major features of the reforms would be: - greater transfer of jurisdiction from the High Court to the County Court - the bulk of personal injury cases (up to £50,000 in damages) will be tried in the County Court in future, - solicitors will have enhanced advocacy rights though many will continue to use the bar preferring to (because it is more profitable) concentrate on other non-contentious business, - use of what were termed 'court controlled case management techniques'. Using modern computer technology, the aim would be to 'track' the stages of an action against a given timetable. This will facilitate intervention such as reminders to parties to 'get on with it' or . risk a striking out, - use of video links to lawyers' offices would be examined, - greater emphasis on orderly listing and earlier trials which

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