Inherent Jurisdiction and the Limits of Civil Procedure

This chapter considers the modern scope and limitations on the use of the court’s inherent jurisdiction in common law jurisdictions. It considers the underlying juridical basis for the jurisdiction, and the underlying theories, namely that residuary powers were vested in the High Court in England and Wales by the Judicature Acts, and that all courts have inherent powers to prevent abuse of process. It considers the ramifications of the distinction between inherent jurisdiction and inherent powers. Changes in the legal landscape since the seminal articles by Master Jacob and Professor Dockray, including the codification of civil procedure in many common law jurisdictions, and modern understanding of the rule of law and the separation of powers, are considered. It is argued that while existing applications of the inherent jurisdiction should be retained, it is no longer acceptable for the English High Court, and equivalent courts in other jurisdictions, to generate new procedural law by resorting to the inherent jurisdiction.

Does Procedural Mean Trans-substantive? A Historical and Normative Analysis of English Civil Procedure Rules

One of the outcomes of the Judicature Acts’ reforms of English civil litigation in the nineteenth century was the separation of ‘substance’ from ‘procedure’, by introducing rules of court that were expected to apply trans-substantively, in contrast to the previous forms of action. This was not an express central aim of the reformers, who may also have been influenced by the then concurrent creation of the American system of federal courts and their civil procedure. The chapter identifies the historical, philosophical, and ideological buttresses of the trans-substantive nature of procedural rules in the English legal system, and how trans-substantivity itself differs from the cognate values of generality and uniformity. It then explores whether any one of these concepts is still used, or useful, in English civil procedure.

Controlling Recoverable Costs

The chapter reviews the system of fixed recoverable costs in Germany, noting its obvious benefits although that system cannot be transplanted to England and Wales. The chapter argues that in the English context the best we can do is to fix recoverable costs in lower value cases. The chapter summarizes the author’s recent work in this field and sets out his proposals for introducing fixed recoverable costs in lower value cases in England and Wales. Those proposals are currently under consideration by the government, following a recent consultation.

Taking Seriously Affordability, Expedition, and Integrity in Adjudication

This chapter explores the potentially far-reaching consequences of treating cost and time as dimensions of justice. It shows that an exaggerated pursuit of accurate judgments may undermine the effort to enforce the law, because it produces lengthy and expensive litigation that is likely to deter many from seeking enforcement in the first place, and to distort justice by subjecting the process to economic inequalities. When affordability and expedition are prioritized, courts will be expected to ensure that litigation remains within the financial reach of litigants and that it concludes within a short time. This means that the court must avoid unaffordable spending or lengthy litigation even when these might otherwise be justified by the features of the case in question, namely its value, complexity, importance, etc. Reducing the uncertainty concerning the legal rights of the litigants has value independent of outcome accuracy; it simply enables people to move on with their lives. This chapter also explores the multi-dimensional nature of justice beyond the trifecta of accuracy, cost, and time. It shows that common law procedures seek to protect additional values, including three senses of integrity. One is concerned with the integrity of litigants, using procedural sanctions to deter abusive behaviour. The second focuses on the morality of the court, requiring it to keep its hands clean and refuse to rely on illegality or engage with proceedings advanced through fraud and falsity. The third sense of integrity focuses on the message a court sends by imposing procedural sanctions on abuse of process.

Compliance Problems and Digitizing Case Management in England and Wales

Compliance with case management orders has been a hidden problem undermining the effective operation of the Civil Procedure Rules. The focus of academic critique has, however, been on the adverse consequences to their effective operation of non-compliance with such orders. This chapter considers this unexamined problem of case management: the compliance problem. It first examines the nature of the compliance problem, placing it within the context of the wider and substantially explored problem of non-compliance; the latter having formed a major limb of Zuckerman’s critique of English civil procedure. It then explores how current and potential future reforms to the English civil justice system arising from HMCTS reform programme, the Civil Courts Structure review, digitization and the potential use of artificial intelligence (AI) could overcome this unexplored problem.

The Bright but Modest Potential of Algorithms in the Courtroom

This chapter investigates the potential of algorithms and machine learning (ML) to improve decision-making. It considers the best roles for algorithms while maintaining important elements of human judgment. There are essential human skills in judging, but algorithms could help systematize the judicial function and thus reduce the risk of human error, inconsistency, and individual bias. Algorithmic decision-making and ML could in principle mitigate these problems since algorithms are more consistent and rely on and can synthesize more data than a human. Yet, recent proposals to use algorithms in the civil justice system are still underdeveloped and face scepticism. This chapter evaluates the risks and benefits of using algorithms in adjudication by pointing out specific elements of legal skill and expertise and identifying tasks better suited for an algorithm. While there are significant reliability and fairness limitations in using AI to make legal decisions, it is important to recognize that many of these weaknesses already exist to varying degrees in human judicial decision-making.

How Judges Decide

This chapter considers what HLA Hart described as a choice between the two extremes of the realist ‘nightmare’ that judges never decide according to the law and the idealist ‘noble dream’ that judges always decide according to the letter of the law. The chapter explores the reasons for legal uncertainty and examines the constraints that control judicial decision-making. Law is uncertain because it is necessarily general and its application in any particular case depends upon the context. This means that judges often have a choice but that choice is constrained by several factors, especially by the obligation to provide a reasoned judgment.

Common Law Principles and the Expression and Use of Forensic Evidence in Criminal Cases

The presentation of expert forensic science evidence in rigorous statistical terms raises the question of how lay fact-finders (judges and jurors) might employ such evidence to prove events in issue. Can this simply be left to the common sense of fact-finders or should the law provide further guidance about how they should reason in applying the criminal standard of proof? Should courts demand that witnesses who give statistical evidence express that evidence in a particular form? This article examines the non-mathematical nature of common law fact-finding and its embodiment in the presumption of innocence principle underlying the criminal standard of proof. It argues that forensic scientists present evidence in a form that makes transparent the risks of error so that, in determining satisfaction of the accused’s guilt having regard to all the evidence before it, the fact-finder considers the reasonable possibility of doubts necessarily left open by statistical evidence.

A Man for All Processes

The American due process revolution that began in the 1960s was slow to reach Britain. The limited power of judicial review and the removal of procedure from the academic study of law left the field oddly barren just as it sprung to life in defining the relation between citizens and the state in the US. Almost single-handedly, Professor Zuckerman sought to reframe the legal understanding of procedural order in the UK. His use of a cost-benefit matrix to define the governmental interest in a particular course of conduct, and his use of the same metric to weigh the costs to private parties and the risks of legal error were transformative. Beginning with his work on the incentives to error created by the Mareva injunction, and continuing to his crusade over the exorbitant costs of British procedure, the result was a scholarly transformation of a field largely abandoned since the time of Bentham. This chapter chronicles the efforts of one far-sighted scholar to drag British procedure into the modern era.

Defining the Scope of the Hearsay Rule in Criminal Cases: A Comparative Perspective

This chapter offers, from a comparative perspective, a consideration of possible approaches to defining the scope of the hearsay rule in criminal cases. In The Principles of Criminal Evidence (1989), Adrian Zuckerman called for a more flexible approach to criminal hearsay doctrine than that prevailing in England and Wales at the time. Some three decades later, the major common law jurisdictions retain rules that have the effect, broadly speaking, of presumptively excluding hearsay evidence in criminal cases. There has been considerable judicial and academic focus in recent times on issues associated with the exceptions to such exclusionary rules. This chapter examines a related question that, although fundamental, has attracted far less attention and remains relatively under-explored: what is, and what should be, the precise scope of the rules that presumptively exclude hearsay evidence in criminal cases? It is noted that the decision of the Supreme of Court of Canada in R v Baldree (2013) offers a radically different approach to this question from that taken in the Criminal Justice Act 2003 (England and Wales), the US Federal Rules of Evidence, the Australian uniform evidence legislation, or the Evidence Act 2006 (New Zealand). In the light of a consideration of the approaches taken in various jurisdictions and the implications of these approaches, the chapter concludes that the Canadian approach provides the most sensible basis for possible reform. Some suggestions on the way in which the relevant law in England and Wales might be reformed are also offered.