Thursday, 29 January 2015

Lord Neuberger on the (civil) Trial Judge's role today

Lord Neuberger - President of the Supreme Court of the UK - has delivered an interesting speech in Manchester - Some thoughts on the post-LASPO civil judge's role before and during trial

Lord Neuberger emphasised the importance in the common law system of the trial judge and said that, when it comes to case and trial management, as much as possible should be left to the trial judge, whose authority and confidence should be reinforced, no undermined or second guessed, by appellate courts [para 5]. 

" ... the Court of Appeal should be very reluctant in principle to interfere with a trial judge’s procedural ruling, and should only vary or reverse it, when the decision is plainly outside the wide range of reasonable choices which is normally open to a judge in such circumstances. And the
Supreme Court should generally not get involved in such matters, which it is normally much less well qualified to deal with. This difference in responsibility inevitably brings to mind the famous dictum of Lord Asquith, a Law Lord in the early 1950s. He observed that the first instance judge should be quick courteous and wrong, which was not to say that the Court of Appeal should be slow rude and right, because that would be a usurpation of the function of the House of Lords. I hope that the Supreme Court is only slow to the extent that the difficulty or importance of a case justifies careful thought, that we are never rude (even about each other) and that we are always right (some hope)."

At para 7 he added:

"The importance of the first instance judgment, and therefore the significance of the trial judge, in our common law system when compared with almost all European legal system is worth emphasising particularly so long as Europe is centripetally, rather than centrifugally, inclined. It may render our first instance cases more expensive and time-consuming, but it avoids the costs, delay and stress of automatic appeals, especially those many European appeals which are what we would characterise as rehearings."

The speech goes on to make interesting observations about devolution [13], Judicial Specialisation [14], the Judicial College [15], the Rule of Law [16], the need for costs to be proportionate [18], Litigants in Person [20-22], Mediation [25, 26] and Online Dispute Resolution [27], Cost management [28] and Fixed Costs 29]. 

With regard to "fixed costs" in "fast track cases" he said [29]:

"Fixed costs throughout the fast track was one of Rupert Jackson’s recommendations which was accepted more than four years ago.  Particularly bearing in mind the Government’s fundamental duty to enable access to justice and their swingeing cuts in civil legal aid, it is more than disappointing that after all this time, we still do not have fixed costs for all fast track cases."

Certainly, the litgant in person with a relatively straightforward case, ought to be assisted by being able to know at an early stage what the costs of litigation would be.

Lord Neuberger concluded by saying [30]:

"I referred to Lord Asquith’s likely surprise if he was alive to see how the judicial role has changed over the sixty years since he was a Law Lord.  From having been a detached umpire who gave a view on the law and the facts at the end of a case and held the ring in the mean time, a judge is now a case manager, a time-tabler, a time-keeper, a rules enforcer, a mediation facilitator, a mediator, a chairman of a meeting, and a costs assessor before and after the event.   First instance judges have been, if you like, converted from guard dogs, who sat on the sidelines and only barked occasionally to warn, into sheep dogs, who continually worry away at the parties to ensure that they fall into line.  So I suppose that means that the Court of Appeal judges are the shepherds.  I am not sure where that leaves the Supreme Court Justices, but, as our role should be very limited, perhaps that does not matter."

!! Guard Dogs to Sheep Dogs !!

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