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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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Attorney - at - Law and Solicitor of PO Box
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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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