Justice and Efficiency in Mega-Litigation

Anna Olijnyk

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509910908
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Justice and Efficiency in Mega-Litigation explores the phenomenon of extremely long-running, resource-intensive civil litigation known as 'mega-litigation'. Such litigation challenges the courts to reconcile the objectives of justice and efficiency – for the parties to the case and for the community. Drawing on interviews with judges of the courts of England and Wales, and of Australia, this book shows how judges have responded to these challenges.
It situates mega-litigation within broader developments in civil procedure and case management, as well as theoretical debates about the role of courts and the purpose of civil procedure. The book highlights the importance of intensive, creative and flexible case management; focus on the issues in dispute; and, ultimately, each judge's expert intuition.

PART I

The Problem

1

Introduction

On an auspicious day in May 2006, Justice Ronald Sackville brought banana and chocolate cakes, decorated with the letter ‘C’, to the courtroom in which he was presiding over a trial in the Federal Court of Australia. Counsel, solicitors and court staff shared the cake with the judge.¹ The occasion? The 100th sitting day of the trial in the C7 litigation: a massive competition law action to which some of Australia’s largest broadcasting, telecommunications and sporting organisations were parties.² This explains why the cakes were decorated with the letter ‘C’ (the Roman numeral representing ‘100’). In the judgment, handed down more than a year later, Sackville J affixed an evocative label to the case: ‘mega-litigation’.³

This book explores the role of the judge in mega-litigation in the courts of England and Wales⁴ and Australia. The central inquiry is the way in which judges reconcile the demands of different objectives in mega-litigation. How do they ensure that justice is done between the parties, while also achieving a measure of efficiency? What is the relationship between the rights of the parties to a fair trial, and that of the community to efficient use of public resources?

For the purposes of this book, ‘mega-litigation’ means civil litigation between well-resourced (and generally multiple) parties involving many complex factual issues, with high stakes and usually a long trial.⁵ Mega-litigation has become, and is likely to remain, a feature of the litigation landscape in both England and Australia.

This book argues there are four different objectives to which court procedure can be directed: doing justice between the parties; doing justice from the point of view of the public (referred to here as ‘public justice’); achieving efficiency for the parties; and achieving efficiency for the public (‘public efficiency’).⁶ The relationship between these different – and sometimes conflicting – aims is a perennial theme of literature on civil procedure,⁷ and a constant challenge for judges in trial courts. The tension between those objectives becomes acute in mega-litigation. Any single case of mega-litigation can dominate a judge’s working life for months or even years. The consequences for public efficiency are obvious: a large proportion of the publicly funded resources of the court system is devoted to a single dispute. There are also consequences for public justice: other litigants are forced to wait for their cases to be heard. From the public point of view, then, there is a strong argument that courts should seek to deal with mega-litigation efficiently. Efficiency is also desirable from the point of view of the parties, with costs in mega-litigation running into nine-figure sums, and disputes taking years to finalise.

But, of course, efficiency cannot be the only goal of courts dealing with mega-litigation. Judges have a fundamental duty to do justice according to law – that is, justice between the parties – in each case.⁸ Can a judge, when dealing with mega-litigation, ever compromise justice between the parties in order to achieve efficiency? The answer to that question depends both on one’s conception of the role of judges, and on the practical reality of modern judicial life. Consider the following statement, by Austin J in a mega-litigation matter in the Supreme Court of New South Wales:

The course of this trial raises a general question as to how far the court can and should go in abbreviating hearing time in a case which, as formulated and defended, is destined to cover huge and difficult evidentiary ground and to consume a large quantity of judicial resources. It seems to me that general issues about the allocation of judicial resources are not matters to be addressed by the trial judge, whose judicial duty is to hear and determine a case that has properly come before him or her, in accordance with established procedures. Manufacturing special procedures simply to deal with the length of the trial seems to me to raise a real risk of injustice, and so I have not done so. The fundamental principle to be observed by a judge who is required to manage and hear a long case, indeed any case, is to strive to do justice, procedural and substantive, between the parties according to law.⁹

On this view, justice between the parties is paramount; it cannot be subordinated to efficiency considerations. Contrast this position with the view that Justice Ray Finkelstein expressed in an interview for this research:

I do not believe in perfect justice. Society cannot afford it. … There must be a trade-off between … making sure that more money is not spent on a case than it is worth, and achieving a fair result. … So, for example, I would limit dramatically, discovery … If that meant documents that were relevant were not discovered, that is too bad. If parties can save millions of dollars in costs and in the process only one or two cases are badly decided the saving is justified. It is a perfectly utilitarian view. Do I sacrifice a few for the good of the many? Yes. Do I have any qualms about doing that? No.

Clearly, views on the relationship between justice and efficiency in mega-litigation differ. This book draws on a range of resources to explore that relationship. Theoretical, doctrinal and rule-based responses to the problem are considered, but none of these provide a complete answer: all leave substantial room for judicial discretion. This book concludes that the relationship between justice and efficiency in mega-litigation is, in practice, managed by each judge in a flexible, bespoke manner. Judges in mega-litigation tend to be very hands-on from an early stage of litigation. Tension between different goals of civil procedure is best avoided through procedural innovation, and through sharp focus on the real issues in dispute. Where tension between those different goals is unavoidable, it is usually resolved not by the application of a rule or principle, but by the judge’s expert intuition.

I.Aim and Scope of this Book

The aim of this book is positive rather than normative. It does not set out to prescribe what judges should do in mega-litigation, nor to set an agenda for law reform. Rather, it records and analyses the way in which judges in fact deal with mega-litigation. These insights can inform debates, at an academic and policy level, about how to deal with mega-litigation in the future. Some of its conclusions clearly have practical implications. Most significantly, it emerges that the management of mega-litigation depends, to a large extent, on characteristics of the individual judge: personality, skill, experience and attitude. In the conclusion to this book, the ramifications of this finding for judicial recruitment and education and allocation of mega-litigation matters are considered.

The book compares the management of mega-litigation in England and Australia. These two countries have much in common. Both are common law countries. Australia draws its common law heritage, court system and approach to procedure from England. They share broad similarities in legal, social and political culture. These similarities allow for many common themes to be drawn in the context of mega-litigation: as we will see, most of the major conclusions in this book are equally true for England and Australia. But there are also illuminating differences between the jurisdictions. Most prominent of these, in this book, are the different paths taken towards acceptance of judicial case management, and the distinct role of London’s Commercial Court. The Commercial Court emerges as something of a model for the management of mega-litigation; yet it is also sui generis, the child of a historic, geographic and economic context that cannot be replicated in Australia.

Australia and England are not, of course, the only countries in which mega-litigation occurs. Singapore and the United States, for example, are noted mega-litigation hubs. Nor does this book say anything about mega-litigation in civil law jurisdictions. One might expect study of those jurisdictions to reveal further insights into the relationship between justice and efficiency in mega-litigation.

This book is about the role of the judge in mega-litigation. There are, of course, other players in mega-litigation. Most prominent among them are the parties themselves and their lawyers. Less directly, the executive government of each jurisdiction plays a role in funding mega-litigation, both through the court system generally and through one-off injections of resources to deal with particular cases. The general community also has a stake in mega-litigation, given the amount of taxpayer funds it consumes, and its effect on access to the courts. This book touches on each of these players, but almost exclusively from the perspective of the judge. At times, the findings are critical of the conduct of lawyers and parties in mega-litigation, but a study of mega-litigation from their own perspectives might place their conduct in a different light.

In examining the role of judges in mega-litigation, this book spends minimal time considering the place of alternative dispute resolution in bringing mega-litigation to an end. This should not be taken as diminishing the significance of alternative dispute resolution, which is a critical consideration in any mega-litigation matter; rather, it reflects a focus on the task of the judge rather than the parties or lawyers. Most mega-litigation matters go through some process of alternative dispute resolution and many settle. But in the meantime, many hours of court time may be spent managing those matters. Therefore, even if a matter settles after alternative dispute resolution, the court will have had to engage with the questions considered here.

II.Methodology

In this book, I combine qualitative interview data with doctrinal and theoretical material. The nature of m...