Reforming Civil Procedure

The Hardest Path

Dominic De Saulles

• Publisher: Hart Publishing
• Year: 2019
• Print ISBN: 9781509946099
• eBook ISBN: 9781509925926
• Edition: 1
• Topic: Diritto
• Subtopic: Procedure civili

Drawing on political, social and economic theory, Reforming Civil Procedure focuses on the English civil justice system by looking at its history and its processes. The book considers the objectives of civil procedure and how it operates for and against particular societal groups, and what ideas and behaviours impact upon it. The reform of civil procedure has been beset with difficulties. Some are caused by questions of culture and mind-sets resistant to the changes, some by a confusion and conflict of values, some by overambitious reform efforts, some by a failure to follow through on purpose clauses, and some by swinging from laxity to rigidity with insufficient analysis. This book makes a strong contribution to the field by synthesising the work of English writers with different views, extending the work in England on the role of philosophy, values, process and culture in litigation, and engaging extensively with American writers who have not previously been the subject of much attention in English civil procedural studies.

1

Purposes and Functions

I.The Need for Theory

It is a striking feature of the history of civil procedure in England and in America that disappointment in the process and its outcomes are writ large. The reality on the ground has failed to provide satisfaction, and that dissatisfaction has caused reformers, rule-makers and critics to consider what the civil justice system is supposed to be there to achieve. The Federal Civil Procedure Rules of 1938 (FCPR) were not a permanent fix. The Civil Procedure Rules 1998 (CPR) failed to achieve all that for which their promoters hoped.

Historically, there have been a number of attempts to describe what people thought they were doing in the field of civil justice: Pound notably criticised the lack of ‘general ideas or legal philosophy’¹ in the procedure of the law. More recently in academia, it has become possible to talk of ‘theories of justice’² covering procedural justice, comprising both ‘Formalism’ and ‘Complete Justice’;³ the ‘justice on the merits’ approach;⁴ ‘and Woolf’s ‘new theory’,⁵ which was ‘a theory of proportionate justice’.⁶ Even the term ‘hypothesis’⁷ has been used. All of these point to a recognition that the civil justice system is there for a reason and has a purpose, and that it makes sense to consider whether that reason and purpose, and the procedures designed to achieve them, are constructively aligned. This alignment is not always an easy task, as history shows. It is for this reason that theories are needed.

II.Complexity and Intertwining

There are two issues here: procedural problems are more complex than they may first appear;⁸ and the substantive and procedural are often intertwined.

Charles E Clark, writing in 1950,⁹ is helpful on the topic of complexity. Clark was contrasting the care taken in approaching the substantive law with general attitudes towards procedural law. He said that

a greater degree of legal sophistication is usually needed than in the substantive field to appreciate the subtle nuances of procedural causes and effects and their interpretation, yet the subject is often approached with a blitheness, indeed a naiveté, on the whole appalling.

It is fair to say that Clark overstated the position here, as we shall see in chapters 2 and 3, for he was the inheritor of a rich tradition of procedural reform. Nevertheless, reforming civil procedure is not an easy task, because reform is not just a matter of changing the process but of changing the behaviour and attitudes of people.

This reformation takes place at the border with the substantive law. The close cooperation required between the substantive law and the justice system is demonstrated by the American case of Boddie v State of Connecticut,¹⁰ in which the claimants of welfare benefits were challenging a requirement that they pay court fees, which, they said, was restricting their right of access to the courts. In this passage Justice Harlan started with the substantive before moving to the procedural, saying:

Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner. Without such a ‘legal system’ social organization and cohesion are virtually impossible; with the ability to seek regularized resolution of conflicts individuals are capable of interdependent action that enables them to strive for achievements without the anxieties that would beset them in a disorganized society.

Just a few years earlier in 1966, the basic purpose of the FRCP was considered in Surowitz v Hilton Hotels Corp, where it was said:

The basic purpose of the Federal Rules is to administer justice through fair trials … If rules of procedure work … they not only permit, but should as nearly as possible guarantee that bona fire complaints be carried to an adjudication on the merits. Rule 23(b) like the other civil rules, was written to further, not defeat the ends of justice.¹¹

Given the difficulties with which civil procedure presents, three things are worth noting: civil procedure exists for a reason; the context of civil litigation is societal; and civil procedure is not an end in itself, although it ought to promote and satisfy certain process values.

III.The Function of Civil Procedure

We start with function, where Richard L Marcus¹² says, ‘Without procedure there would be no guidelines as to what information is received by the decision-maker … [or] how the information is to be presented.’ This points us towards one function of procedure. It is there to guide,¹³ to set out the steps to be taken both at the specific level and at the general level.

The civil justice system exists to ensure that substantive justice is done and to give effect to the procedural rules that provide the platform for the dispensing and effectiveness of substantive justice. There are four aspects to this system:

(a)The people who run it and engage with it. Here we have the judges who are operators in individual cases or, in the case of appeal judges, operators at the system level. Apart from operators, there are direct users, the litigants, and indirect but repeat users, the practitioners. Litigants and practitioners are participants in the system.

(b)The place. This includes court rooms, judicial chambers and digital space where the activity is undertaken.

(c)The large-scale processes. These are the constituent parts that go to ensuring that a case is tried and that numerous cases can proceed at the same time.

(d)The procedure to be followed. Here we deal with individual acts directed by the rules or by court order to ensure that the constituent parts of the process are completed properly. We also have the acts to be done to achieve a particular result: for example, to have a case brought to an early close because it is a weak case, it is possible to make an application for summary judgment under CPR Part 24.

IV.Society and the Courts

Let us look at society and the courts. Society provides its citizens with a means of having their disputes resolved through authoritative means. The courts are not primarily there as symbols of justice, nor is their main role to develop the law, important though such roles are.¹⁴ Rather, the courts are there to decide disputes according to the law, the outcome of which is justice according to the law. Not all disputes go to trial, many cases never even get as far as being issued. But the availability of trials, the laying out of specific court procedures and the use of pre-action protocols sets the context within which the disputants may come to terms; for even if a case does not come to trial, substantive justice will have been obtained if the case settles according to the substantive law.

The societal function of the courts, to dispense or facilitate substantive justice, can be disrupted, however, if the procedures provided to the parties do not work properly, so that a case proceeds too slowly or costs too much. In such circumstances one can see that there is a process and method aspect to justice, as well as a dispensing aspect.

The need for a specific goal for the rules by which the system operates follows on from the function the civil justice system plays within society. In Mechanical Jurisprudence,¹⁵ Roscoe Pound argued as follows: ‘Herein is the task of the sociological jurist … to secure for the human factor in experience the central place which belongs to it in our whole scheme of thought and action.’¹⁶ Laws specify, control and trace the interrelationships between the citizenry and their relationships with the state. Such laws, which we call substantive, are particular to time and place. Thus, in England the judges take an oath in the following terms, ‘I will do right to all manner of people after the laws and usages of this Realm’.¹⁷ The laws and usages to be applied are those current in England when the dispute arose.

All of this highlights the importance of the substantive law. John Finnis argues¹⁸ that the goal of the substantive law is ‘a certain form or quality of communal life’,¹⁹ which includes individual autonomy.²⁰ But to return to our theme, the substantive law requires a system to make it effective when people are in dispute. This felt need for effective process goes deep in English and American culture. Magna Carta proclaimed, ‘To no one will … we deny, or delay … justice.’²¹ Blackstone spoke of the citizen’s right to apply to the court ‘for redress of injuries’, and said that the ‘courts of justice must at all times be open to the subject, and the law be duly administered therein’.²²

Finnis says that the substantive law has to be ‘worked out’ by a system of ‘authoritative co-ordination’,²³ which, he says, allows for both procedural fairness, being the due process of the law, and substantive fairness, relating to questions of deserving and to questions of proportionality.

If the due process²⁴ aspects of the system fail to operate properly then substantive justice remains out of the reach of the citizenry and, from the constitutional perspective, the judiciary will have failed to discharge its mandate.

V.The Social World

Just as individuals have a role to play in the social world, so do groups. In our context, groups are collections of people in similar circumstances – perhaps by choice, perhaps because it is required – who come together or work alongside each other, focusing on the same goal or task. Each group will have its own behavioural norms that become habitual. Individuals ‘own’ these norms because of what they can gain from compliance, because of their own moral commitments and because of what the group expects of them. The habituated norms can be passed on as a whole. So barristers will have their own culture – ways of behaving, dressing, speaking, eating, thinking and so forth. These sub-cultures encapsulate the world for the professional, to the extent that where changes in behaviour are required, it can seem as if the whole world, the group and the individual are threatened. So a required modification of behaviour may be resisted.

Further, if the habitual practice makes sense to those required to change, it will be defended. And one has to allow that people might genuinely think that an existing system is preferable to the proposed new one because of the loss of certainty, exposure to the unknown, and the learning and effort required to make the required change.²⁵ And the reason for change may be put across in such a way as to blame the proposed object of change, thus alienating its adherents. Woolf, in casting the blame on legal professionals, was not following the path trodden when the FRCP (1938) were drafted.²⁶ And if, as Sorabji says, Woolf was proposing a new underlying philosophy, that would require a change of mentality. From the lawyer’s perspective, the client’s interests were to be subordinated to the process and to the needs of others. Worse, power was to be concentrated in judicial hands.

A.We Make Our World

The broad theory of social construction can be expressed in this way: we make the social world in which we live.²⁷

Ian Haskins, in The Social Construction of What?,²⁸ reviews the structure of social construction theories. He points out that they are often used in the following manner: x is socially constructed, x is bad, we should therefore change x.²⁹ The argument of this book does not take this strong form. Rather it is argued that all systems of civil procedure are socially constructed; different systems will produce different results; it is possible to evaluate these results and then to change a system if it is insufficiently effective. This is true of the systems operating FRCP (1938), the RSC (1883), the RSC (1965) and the CPR. All of these systems were or are socially real. Civil procedural systems are operated by real people who live in the real world (ie the world of brute facts), so, on Christian Smith’s argument,³⁰ the position stated here would be akin to a weak or realist one.

The argument here is not that all reality is socially constructed, for you can stub your toe upon a stone and definitely hurt yourself.³¹ Nor is it the argument of this book that all reality ...

Table of contents

• Cover
• Dedication
• Title Page
• Acknowledgements
• Table of Contents
• List of Abbreviations
• Introduction
• History: America to 1938
• 1. Purposes and Functions
• 2. What is Civil Procedure For?
• 3. Intention, Action and Outcome in Anglo-American Civil Procedure
• 4. Voyages in a New World: The Unanticipated Consequences of Civil Justice Reform
• 5. Defending the Civil Justice System: The Function of Sanctions
• 6. Process Costs and Error Costs: The Reform of Civil Appeals in Anglo-American Perspective
• Bibliography
• Index
• Copyright Page