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GAZETTE
SEPTEMBER1984
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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