LORD WOOLF - MASTER OF THE ROLLS.
TOM SARGANT LECTURE 1996
CIVIL JUSTICE IS IMPORTANT AS WELL
It is very considerable privilege to be asked to give this lecture.
The problem for those who come to these lectures and in recent
years find that yet again they have to listen to me is that I
have such a great respect for what Tom Sargant and Justice and
what they achieved I find their invitations ones which are impossible
to refuse. Tom Sargant alas may no longer be with us but fortunately
Justice and his indefatigable daughter Naomi are and continuing
the good work.
At the time I agreed to give this lecture I did not know that Lord Mischcon was to be my Chairman. This is a singular privilege. One advantage of being a Law Lord (and there are many) is you occasionally visit the Chamber and even take part in debates. Before I was entitled to do this I already had an immense respect for my chairman but this unqualified admiration when I witnessed the quality of his contributions to the Lords. Always wise and frequently highly amusing. What I found most attractive is his ability to see right to the core of an argument and if it was foundation to delicately reveal this for all to see. I have some trepidation as to what he will make of my contribution this evening.
I found it difficult in choosing a subject for tonight of which Tom Sargant would have approved. He was not only a great campaigner he was also a successful campaigner. Justice is his memorial. By deliberately adopting a low profile in a quiet almost understated manner it has achieved an immense amount to improve values within our society. It has all been done with remarkably modest financial resources. As the late Paul Seighart was fond of saying, "Justice punches way beyond its weight because of its deservedly high standing with those who it wishes to influence." This was a great achievement of Tom Sargant.
Tom's achievements which most immediately jump to mind are those linked to injustice within the criminal system. What tends to be overlooked is that Tom Sargant was responsible for Justice also making substantial contributions to the improvement of the civil justice system. For Tom Civil Justice was important as well. It is his and Justice's first major contribution to the reform which I have chosen as an introduction to my principal topic which I wish to discuss with you to night. Discuss with you in a campaigning spirit of which I hope Tom would have approved.
The topic is the uninspiring sounding one of the creation of a Civil Justice Council. The "introduction" to that topic is provided by the highly effective ombudsman system which we now have in this country. An ombudsman system which was imported to this country largely thanks to Tom Sargant and also due to Tom's efforts the committee of Justice chaired by Sir John Wyatt.
I chose the ombudsman of the many reforms that Tom was involved with is that I do not believe it would have ever been introduced if Tom had not campaigned for this to happen. Certainly it would have happened if he had waited for the government of the day to take it up on its own initiative. In 1962 the government in fact gave a resounding no to the idea because it considered it was irreconcilable with ministerial responsibility and was calculated to interfere with the prompt and efficient dispatch of government business. However Justice and Tom persisted and five years later the new government was won over and the Parliamentary Commissioner Act 1967 was passed.
I also chose Ombudsmen and the Civil Justice Council as subjects for discussion because they are important sign posts to what I am seeking to achieve by my recommendations as to civil justice. I have made 303 recommendations in my report but what my major ambition goes beyond the individual reforms. It is to change the culture of civil justice from one which is excessively adveserial disproportionately expensive and unequal and therefore inaccessible to the majority of our citizens to one which approaches the resolution of disputes in a rational and proportionate manner and regards the weapon of litigation as the ultimate deterrent. A deterrent not to be used except as a last resort because the consequences of doing so even after the implementation of my reforms will be largely unpredictable.
The suggestion of the establishment of a Civil Justice Council I believe would help to bring about and mention the change of culture I would like to see. The importance of the Ombudsman system is that it demonstrates that disputes can be resolved in non confrontational manner very different from the all out warfare which all too frequently afflict our courts. My reforms to the ombudsmen system are modest. No great expense is involved in a Civil Justice Council. The need for it I believe is overwhelmingly demonstrated by the state of our civil justice system to date yet there are indications that these features of my report may be lost. So tonight I am launching a campaign on their behalf of which I believe Tom would approve.
The success of the ombudsmen since they were established almost 30 years ago has justified the confidence of the committee of Justice which recommended their creation. As a result we now have in addition to the Parliamentary Commissioner both a Health Service and a Local Government Commissioner in the public sector and in the private sector what has been described as ombudsmania has become rampant. There are Building Society, Pensions, Banks, Corporate Estate Agents and telephone information services ombudsman. Universities have established their own Ombudsman. Some government departments like the revenue and the Home Office are now so attracted by the phenomena that they have created their own mini ombudsmen. Some are established by statute others are entirely dependant on voluntary schemes.
What the schemes have in common is that they provide for members of the public a remedy when frequently there would be no remedy in practice but for their intervention. They provide to take the hackneyed title of a recent report "Access to Justice".
Many of the complaints which the ombudsmen investigate never attract any attention but just occasionally a decision sets off a chain reaction with dramatic consequences. In the public sector, a classical example is provided by the finding of the Parliamentary Commissioner maladministration after the Barlow Clowes debacle. The finding was one about which the Department of Trade and Industry was extremely unhappy, not least because they ended up paying ex-gratia compensation amounting to £150,000,000. On a dramatically more modest scale, from personal experience I can personally vouch for the effectiveness of the Banking Ombudsman. Nonetheless I hope that the fact I am an acknowledged sufferer of ombudsmen mania is not entirely due to this individual experience.
The process which the ombudsman uses to investigate disputes is truly inquisitorial. It is a process which is entirely foreign to the adversarial approach by which civil disputes are traditionally resolved in this country. The success of the ombudsman innovation conveys a clear message that in the past we have been unduly complacent in this country in assuming that disputes can only be resolved satisfactorily by the traditional common law trial and that we have to be constantly looking both in this country and abroad for new methods for achieving an ancient objective of justice.
The advantages to the complainant of the ombudsman system is that all he or she has to do is make a complaint and the ombudsman takes over and produces a decision. The complainant cannot lose because he never ends up out of pocket but he can win not his disproportionate damages but compensation pitched at a sensible level. Yet it is not only a complainant who gains. If this was the case, we would not for example have a Banking Ombudsman financed by the banks. Banks find it worthwhile to finance the Ombudsman because of the beneficial influence on the Bank's image, customer relations and internal practices. This is despite the fact that a resort to an ombudsman does not prevent subsequent access to the courts.
When the establishment of a Parliamentary Commissioner was recommended, MPs thought it could undermine their relationship with their constituencies. It was because of their sensitivity to their role that complaints had to be challenged through a member of parliament. The courts were also sensitive to any possibility that it would trespass on their traditional role as adjudicators of dispute and so the Commissioners were precluded from investigating matters lying within the jurisdiction of courts of law or special tribunals unless they are satisfied that in the particular circumstances it is not reasonable to expect the person aggrieved to resort to or to have resorted to proceedings before the tribunals or court. While I do not dispute that it may have been sensible initially to protect the traditional roles of members of Parliament and the courts, I do question whether this is any longer the position. Certainly I would not sever the Parliamentary Commissioners links with Parliament. The fact that he reports to a Select Committee of the House after all gives him great credibility which is important for ensuring the implementation of his recommendations.
However I do consider that it is time that the ombudsman's relationship with the courts is reconsidered. In my interim Report on Access to Justice (Chapter 18 p139 et sic) I drew attention to the fact that the system was free of the diseases which are proving so resistant to cure in the court system. I therefore recommended Government departments to investigate whether with their encouragement additional ombudsman schemes could be established. As far as I am aware this recommendation has fallen on deaf ears though the discussions I had with for example the car industry suggested there was considerable scope for expansion.
I also indicated that while the courts jurisdiction should not be curtailed in any way there would be an advantage if the ombudsman had wider scope to take on issues which could be resolved by the courts. The ombudsman would not be expected to determine an important issue of legal principle and I would like to see the ombudsman having discretion to refer complaints to the court where a point of law is involved but he could investigate issues which it is difficult for courts to resolve.
I also see advantage in the courts being able to refer issues to an ombudsman with the ombudsman and the parties consent. The ombudsman's findings of fact in any subsequent proceedings would then be accepted as being correct in the absence of clear evidence to the contrary. There are many areas in the public and private sector where bodies have a justified and understandable concern about having their activities exposed in the open forum of an open court. Admittedly not infrequently public bodies and large corporations are unduly modest about revealing "all". There are however circumstances where they can legitimately claim that they should be entitled to have their intimate activities veiled in a clock of confidentiality. In these situations in particular the ability of a person of undoubted independence to look behind the veil and ensure that there are no blemishes which should be revealed can be very important protection for the individual while protecting any justified confidentiality. The ombudsmen can resolve complex issues of fact at a fraction of the costs of a trial and a discretion to enable the courts to do refer issues of fact subject to proper safeguards to an ombudsman I believe would be wholly desirable. My recommendations as to ombudsmen are therefore modest. That they should be extended to new fields that they should remain separate from the courts but there should be a relationship between them and the courts which enable them to support each other.
This brings me conveniently to the other topic of the Civil Justice Council. It is a topic on which so far the Lord Chancellor has reserved judgment. It was the subject of a recommendation which came in the final chapter of my Interim Report. Although it came at this late stage of the report, it was not an afterthought. I see the Council as an instrument for maintaining the momentum for change. Ensuring that initiatives like the introduction of the ombudsmen as instruments of justice achieve their full potential.
When I set out on the Inquiry which resulted in my Report, I was very conscious since 1885 there had already been over 60 Reports each urging reform of the civil justice system yet the situation on which I had to report was one which many commentators described as being in crisis. Why should this be so ? It is not because of any callous disregard of their responsibilities by those in charge of the system. It is my belief part of the cause is the absence of a broadly based body which has the clear responsibility for monitoring the justice system as a whole and identifying the areas which are in need of reform.
This is not a task that the judiciary can in the ordinary way perform on their own. They are too absorbed in the task of conducting trials to fundamentally revalue processes by which the cases come to trial. The Lord Chancellor's Department and the new Court Service Agency have a role in keeping the court system under review. However the problems of the system go beyond the courts. Furthermore even in relation to the courts, the Department and the Agency have to be cautious in what they propose so as to avoid trespassing upon judicial independence. It is much easier for a body standing apart from the executive to make, for example, recommendations which involve serious change in the judiciary's role.
In addition examining the system as a whole involves going beyond the responsibilities of a single Department. The Lord Chancellors Department for example has no direct responsibility for ombudsmen. It has a responsibility for some but by no means all tribunals. Arbitration is very much an interest of the Department of Trade and Industry. While it may be possible for the Lord Chancellor's Department to expand its role so that it oversees the whole civil justice system, this is a task which is more readily performed by a consultative and co-ordinated body than a Department of Government.
In my interim Report, I expressed a hope that by the time I presented my final Report a year later a Civil Justice Council would be ready to take part in the process of reform which the Inquiry had begun. I would have particularly welcomed this happening since as a consequence of the Inquiry there has been established working groups in various areas of litigation charged with the task of producing protocols. Protocols which would set out a blue print as to the way in which litigants should behave prior to becoming involved in litigation. They would be instruments for achieving the change of culture which is needed involving a more rational and proportionate approach to dispute resolution.
The use of the protocols would be encouraged by the courts which would if necessary punish departure from them by making punitive orders for costs and awards of interest. The courts can not however draw up the protocols themselves. The protocols depend upon reaching a consensus between those regularly involved on both sides of litigation. In the area of medical negligence for example representatives of the hospital trusts the insurers the doctors the nurses and the claimants organisations are involved in the protocols. In housing cases those who regularly appeared on behalf of claimants and the housing authorities have to be involved. This is in addition to the judiciary both sides of the profession and the Lord Chancellor's Department and any other relevant department such as the Department of Health or Department of Education.
The working groups have already astonished all those involved by the extent to which it is possible to reach an agreement on a wholly different approach as to how disputes should be handled. Those who in the past had no ability of communicating have come together to search for solutions. The goodwill which has been engendered must be maintained. This is particularly important in the sort of areas which the working parties are at present examining. It cannot be right that money which should be spent on repairing homes is instead being spent on litigation. The same is true of the expenditure of the money which should be spent of caring for patients also being spent on litigation.
There already exist Users' Committees both in the High Court and in the county courts. Their role is rather different from that of the working parties because they focus primarily on the manner in which the courts meet their particular needs . However in their case and in the case of the working groups it would be an advantage if there was a body to which they could relate. This is particularly true of specialist areas of litigation such as the Official Referees business and intellectual property.
Initiatives of a more general nature would be considered by a particular user group and it would be useful if those could be referred to a Council so that their more general application could be encouraged. The Council could in turn be proactive in indicating areas where it would be useful for further User Committees or Working Groups to be established.
Where the co-ordinating role of the Council could be particularly important is where there is an interface between the courts the other bodies which resolve disputes. There can be little doubt that ADR is going to continue to expand and there are going to be many more alternatives to those which already exist. However even between the existing bodies there is all too often a regrettable lack of coordination. I have already referred to the ombudsman. The position with regard to tribunals is frequently unnecessarily complex. Many years ago now (19) I drew attention to the hotch potch of appeals. Improvements that have been made since that time are modest indeed. The difficulty is notwithstanding valuable work done by the Council of Tribunals, the tribunals are established by differing Government Departments without any real attempt being made to co-ordinate even their methods of appeal. There are therefore a mass of technical distinctions between the way of appealing from different tribunals which create a quite unnecessary minefield for the unwary litigant.
It is already appreciated that the manner in which Legal Aid is provided will needs to be radically altered if the resources which are available for civil legal aid are to be used to the best effect. This is a subject on which there is a need for continuous consultation. A Civil Justice Council in which all the relevant interests are represented, could make a most valuable contribution to that process.
I have already referred to the protocols which are to control behaviour of the parties before litigation commences. After it commences in addition to the new rules, the manner in which parties are required to proceed is going to be subject to practice directions and practice guides. Practice directions and practice guides will be detailed documents controlling the procedure of the courts and again a consultative council would be able to provide the advice and guidance which is required if they are to work effectively.
One of the most striking lessons which I learnt as a result of conducting the Inquiry, is the extent to which exactly the same problems which we are faced with in this jurisdiction were being tackled in other jurisdictions. The similarities were of course greatest in other common law jurisdictions but in the non common law jurisdictions as well there were very important lessons to be learnt. I would see a consultative council as having a very valuable role to play in ensuring that there was a resource available in this country which would ensure that information could be provided as to what is happening in those other jurisdictions. If this information were available, it would ensure that the necessary evolutionary process as to methods of practice in this country did not fall behind that which was occurring elsewhere.
There is also a lack at the present time of education not only in schools but in other institutions as well as to what is the role of the civil justice system and how to go about obtaining the most important protection which it can provide for the individual citizen. I am not aware of the existence of any body which has the national responsibility of encouraging the provision of that education. While there is an increasing expectation on the part of the public that their rights will be protected there is also widespread ignorance as to the way in which that protection can be obtained. If the Council were to promote knowledge of how to handle disputes in a reasonable and proportionate manner, this would make a significant contribution to the way in which we live together.
Accepting as I believe we must that these tasks need to be performed, then the next question is can they not be performed by an existing body. Why create a new body ? Although it is possible to identify bodies who could make a contribution, I do not believe that there is any combination of existing bodies which will go half way towards meeting the need which I believe exists. I have already referred to the problems the judges and the Lord Chancellor's Department would have in taking on this role. A candidate is the Judicial Studies Board but it is concerned with the training of judges. The fact that its role is limited to the judiciary provides an example of an area which there may be a need for the Council to assist in achieving more cooperation. For example in some areas it would be sensible for judiciary to be trained together with members of other bodies including both sides of the profession or experts. I would anticipate that the Judicial Studies Board could well find it an advantage to be able to consult an outside body representing a broad range of interests as to what are the priority areas for training. Then there is the Rules Committee, the new Rules Committee which is to be responsible for the Rules which are to apply to the county court and the High Court. Although the new Rules Committee is to have a broader remit than that of the existing Rules Committees, it certainly would not be possible for the Rules Committee to perform the sort of tasks to which I have referred. There is also the Law Commission but this admirable body is concerned with the reform of the law rather than changing institutions and procedure and practice. The Department has a real interest in most of the areas to which I have referred. It has a strategic and monitoring role in those areas in which the Council would have an interest if it were to be established. However the task of the council would be quite different from that of the Department. It would not compete with the Department but assist the Department by identifying areas of the system as a whole which could benefit from its attention and by providing a broad ranging response to initiatives of the Department.
There remains the questions as to who should be represented on the Council. So far as is consistent with it remaining an effective forum all the bodies who have a significant interest in the proper working of the system should be represented. Among those who obviously would be represented are the judiciary, the Department, the Court Service, the Judicial Studies Board and professions and a wide range of court user organisations including industry, the trade unions, insurers and consumer groups. Any number over 20 members would however probably prove unwieldy.
The Criminal Justice Council which came into existence after Strangeways could well prove to be a model. The Council would be an umbrella body and a number of its functions could be achieved through the existing bodies to which I have referred. I do not anticipate it having other than a small supporting secretariat. To a large extent it would establish its own agenda. It would have no power of direct intervention but its authority would be considerable because of the standing of its members. It would be obliged to produce at least an annual report to the Lord Chancellor setting out its conclusions and recommendations as to the action required to ensure that the civil justice system evolves in a manner most likely to serve the public.
The Report which I produced in the summer has been described in dramatic terms. I recognise that it does involve a fundamentally different approach to that which exits at present. I have been delighted but surprised by the extent to which it has been welcomed on all sides. However experience that we have had of the system to date makes it clear that a repetition of the mistakes of the past can only be avoided if the system is subject to continuous scrutiny consultation and co-ordination. This is what the Council would help to provide.
To implement the reforms to the ombudsmen system to which I have referred and establish a Council may not be dramatic innovations but I hope they are ones of which Tom Sargant would approve. They could also be important instruments of further change.