The English Civil Justice Process Law General Essay

Published Date: 02 Nov 2017

A brief discussion on both the formal and informal justice system before the advancement to the wider issues afflicting the English civil justice process is discussed in this paper. Moreover, this paper also describes reasons highlighted by the supporters of ADR movement in favour of growing support of ADR which somewhat undermine the formal justice process consequently afflict the English civil justice process.

It is a universal principle and fundamental right of every one to access to the justice because right to get justice is one of the basic elements for human development and natural justice. It prevents from conflicts between various segments of society thus helps to develop the positive thinking towards the society and democratic governance hence help in reduction of injustice and poverty in the society. It is duty of State organisations and a formal justice system to provide justice to the people. Formal justice system normally consists of State prosecution department, police and other law enforcing authorities which are responsible for the provision of the civil and criminal justice.

Though formal justice system is responsible for providing justice mainly but a large segment of people mostly poor are unable to get benefit from formal justice system for resolving their conflicts as compared to the privileged or upper class of the society. As a result, using ADR methods to seek justice is getting a large support. The reason behind the increasing support of ADR movement is highlighted by its supporters and they claim that hurdles in providing justice to the poor people fear of bullying in the hand of state departments like police, agencies and power segment of society, difficult and unclear language of legislation, procedure and rules of law. [1] 

An inequality in formal justice, physical and financial isolation is further pointed out by the critics. Critics also point out added reasons for the deviation from formal justice system such as cultural un-comfort with formal system, strict and rigid procedures of the formal system along with long delays and pendency of cases in courts. Jurists and law related people considered these weaknesses of formal justice system as valid reasons to find another system which should be free of such weaknesses and deficiencies. This thought led them towards informal justice system and support to ADR movement.

In contrast with the formal justice system, the term ‘informal justice’ is used to refer to a process in which an attempt to resolve disputes between parties is made in a less formal and more consensual way and without using means of formal justice system. Conciliation and negotiation is most common forms of ADR, there are some other forms such as ombudsman, dispute settlement conferences, fact finders etc. Before referring to the court, sometimes an opportunity to the parties to find some manner for resolving the disputes is provided by ADR being a voluntarily procedure. ADR is also defined as a procedure to resolve issues out of court without adjudication by a presiding judge, with the help of a neutral third party. Some jurists are of the opinion that it would be more proper to consider ADR as an appropriate dispute resolution and not just an alternative dispute resolution. "Alternative dispute resolution (ADR) tends to transform into appropriate dispute resolution. Alternative dispute resolution is usually considered to be alternative to litigation it also can be used as a colliqulism for allowing a dispute to drop or as an alternative to violence" [2] . This thought became the main initiative behind the concept of movement of informal justice system with the aim of provision of substitutes to dispute and also to bring transformations in whole dispute resolution system.

By challenging the formal justice system ADR movement desires to make ADR methods such as arbitration and mediation as alternatives of the formal justice system having aim to replace it. The ADR movement tends to make ADR more appropriate for the parties especially the parties with families and commercial dispute by using conciliation and settlement. Undermining the civil justice system and attempt to change it with ADR by calling ADR an appropriate system is one of the preliminary issues which afflict and challenge the English civil justice system. Immense growth in use of ADR methods can be seen in last three decades despite the effort and resistant by a number of advocates of formal justice and law related people. Preference of informal justice system and such increase in use of ADR in contrast with formal justice system amounts to undermine the formal civil justice process

On the one hand there was a revolutionary support for ADR whereas on the other hand there was some criticism on the ADR movement also seen. In the opinion of some critics, moving away from litigation and civil justice system towards settlement is misdirected because litigation gives voice and meaning to public values and principles but private settlement cannot do so.

"Conflict is not the enemy, but instead is the means of promoting justice. Unresolved conflicts that are "resolved" without adequate justice (via ADR and the like) are ultimately the enemy of all humankind, as they help institutionalize inequality." [3] 

It has been said that it is an effort to bypass the English courts and jury system. The most hot and pointed analyst of ADR argues that informal justice, far from constituting an independent substitute to state justice, creates the potential for the indirect expansion of social control into areas of social life previously unregulated by the state. It is a strong belief of critics that compromising is always supported by ADR which is not always a good solution to the disputes because many times the complainant are more sensitive about their disputes and as a matter of fact, chances of compromise are almost nil. Moreover, it is concealed in nature and mostly the proceedings are not even recorded if so, that would not be available for public therefore in issues related to the public it could unfavourably affect to general public. For example two companies can resolve their issues related to some product or project harmful to the general public or users and as record of said proceeding not always accessible to the public that will create big miscarriage of justice.

The ADR was considered as a mechanism with abilities to replace civil justice system because of this ability ADR movement is no longer remained un-noticed by the courts therefore a voice from court room came out that this stance towards civil justice system could not be accepted because no other system can take over the formal justice and court system.

The ADR movement is further condemned for by passing the English civil justice system saying that "More than one judge has expressed concern that with less jury trials, fewer legal issues will reach the appellate courts, which, in turn, slows down the development of the law. There have even been expressions of concern that mediation undermines the rights of women in family law dispute." [4] 

It has been said that ADR supports resolution of disputes outside the court through arbitration and mediation hence critics called the ADR movement "Privatization of jurisprudence". A genuine concern regarding formal justice system being that very limited issues will be presented to the courts to decide as a result of it development in law in shape of precedents and judicial observation and discussion will be limited. Moreover chances of committing illegality and menacing public interest are always there as settlements are conducted privately taking in consideration only the individual’s interest therefore normally it has confidential settlement sections not accessible to general public. Ugo and Nader observed that ADR is mostly came handy for coroporates and political elites, calling ADR to be blanket term to resolve legal issues through informal mechanism which only provides the results of win and power balancing formulas to the disputants and also that ADR is serving to attain corporate equality rather than human equality.

There are no judges, no formally defined set of rules, no legal representation in ADR inequality of bargaining power is another problem which is divergent to the spirit of natural and civil justice system, therefore immense chances of discrimination due to lack of bargaining power exists when one of the petitioner belongs to the dominated segment of the society e.g. by race, class, gender etc and is clearly discouraged by the English civil justice likely in the ADR process. Informal system is not transparent/ clear from political or elite class interference and influence therefore critics rightly said that many time ADR do justice at the cost of poor segment of the society or poor disputant.

ADR/ mediation is naturally facilitative thus is prone to unjust settlement especially in the event of power imbalance which may influence the entire process. Justice can be achieved by applying right law according to the facts through a valid procedure, but process that leads to settlement cannot be considered as justice. Mediation generates justice from capability of parties to mediate on equality basis, which is only guaranteed when it is with free consent. Chances of injustice cannot be overruled where a party consents against its free will, this will be against the spirit English civil justice process, natural justice and fundamental right to access the justice

Leading scholars mainly feminists and civil rights advocates, have attacked the appropriateness of mediation, mainly for disempowered disputants, such as women and people of colour, asserting that, mediation may result in overreaching by male disputants against disempowered female disputants, with the incentive complicity of the mediator; no mediation should ever take place between male and female disputants. Feminists argue that women are structurally disempowered in line with men consequently feel endanger during process of family or restorative mediation. Various scholars cite compelling evidence that some mediation cases have been handled in this way. [5] The classic example supporting this view is that of the late Trina Grillo’s article (1991) "The Mediation Alternative: Process Dangers for Women," depend upon examples of mediation forced on abused women who are thereby pressured to reason with and cooperate with their physical oppressor. [6] 

Debate leads to a broad consensus that coerced mediation, new legal funding rules and adverse cost rule of the court negatively affects the underprivileged people and have no adverse affect on strong parties. Genn highlights Abel’s point of view;

"The modern trend towards informalism, based in efficiency arguments, represents a ‘downgrading’ of the problems of the poor and a relegation of their disputes to second-class forms of justice". [7] 

English civil justice is against the dominance of Elite class and deems accountability but ADR lacks on this end. The mediator and the arbitrator are free to give decision as there is no platform for accessing their appeal for the loser party. The ADR movement makes up the decision on the grounds of culture, customs and traditions and the readily available information. There are no checks and balances as are available in English civil justice system so that makes ADR dependant solely on the person conducting the proceedings, so there are black spots available for influence, bribe political pressure, favouritism or biasness. Contradiction can arise in some decision made through ADR method in shape of brutal and ruthless punishment when it comes to basics of human rights, such as banishing or pounding, or decisions that separate the women or the exploitation of children which are against the international human rights and norms of English civil justice. Following study supports this claim;

"Mediation is generally backed by coercion in the shape of either social sanction or threats of violence. Mediated settlements can reflect what the stronger is willing to concede and the weaker can successfully demand" [8] 

It would not be untrue to say that large debate over the issue whether or not the ADR method is a contradiction to English justice process has generated by English jurisprudence. There are no second thoughts that a dispute was originally solved through the courts with the help of lawyers and ADR method has generated views both in favour and against to this debate. High costs and time consumption comes into mind of many lawyers when considering the court to solve every dispute. On the other hand, there were many attempts of diverting disputes away from courts in many forms of alternative dispute resolution. As already discussed above that, mediation is largely recognised method of dispute resolution for provision of justice in civil, restorative and family actions because it is deemed to be cheaper, less formal, lets the disputants decide upon the outcomes, less rigid.

Lord Woolf’s civil justice reforms can also be translated as another alternative form of problem solving can play a key role for resolving disputes. In Cowl v Plymouth City Council [9] in the context of judicial review; Lord Woolf stated that failure to use ADR lead to greater expenditure: "… parties should be asked why a complaints procedure or some other form of alternative dispute resolution has not been used or adapted … If this had happened in this case many thousands of pounds in costs could have been saved and considerable stress to the parties could have been avoided." [10] 

Many scholars however claim that in multiple phases legal disputes are better handled by legal action than arbitration e.g. guaranteed outcome, availability of legal precedent and reform, enforceability considerations, and the disempowered client’s special needs particularly in family and restorative justice matters. Few academics and lawyer such as Michael Todd criticised Lord Woolf’s reforms saying that "The Woolf reforms did not achieve everything that was hoped for them. Costs in civil cases have risen inexorably, and disproportionately, over the past 15 years and therefore need to be contained [i] ." [11] 

The Civil Procedure Rule (CPR) 1.4 necessitates use of ADR for courts in order to support the parties and making the procedure simple. [12] Parties have a free hand to settle their disputes wholly or in one go. [13] If the courts consider it suitable for ADR or on request of one or all parties enabling the parties to settle the dispute by the use of ADR, the court can stay the proceeding by following the 26.4 CPR. The most significant provision is CPR 44.3 (2) which states that, courts can diverge from general rule that loser party have to bear the expenses of the case by passing a different order about the costs. [14] Similarly Rule 44.3(5) handles the conduct of parties for example the behaviour before and along the hearing particularly their attitude towards any applicable pre-action protocol observation. In case the court thinks that the settlement was feasible outside the court but the party wasted it by emphasizing on court proceeding then following CPR 44.5 the court can pass unfavourable cost order against such party. [15] 

A deliberate arbitration scheme has been established by the court of appeal in 1996 which states that a letter of invitation was sent to the concerned parties to give arguments for denial. The method encouraged the courts to consider using ADR in case it is feasible, court can guide the disputants to use ADR method for their settlement. This also provides authority to Master of the rolls to direct disputants for using ADR or else provide their justifications for refusal if they do so. [16] As of the prior discussion the current English legal system dictates the loser to pay the legal costs of case to the winner, there is an exemption for refusal of court order to arbitrate is this general rule, the court will consider the behaviour of the parties while declaring the cost order, It was held in Dyson and Field v Leeds City Council [17] that, the court can issue security cost as well as high interest rates on damages in case the parties reject to exceed to try ADR advised by court.

Dunnett v Railtrackplc (in Railway Administration) [18] is by far the best example of the principle discussed above, The Court of Appeal did not reward cost to the winner party because of the reason that the party had refused to try ADR advice of the court. The court held that the ADR should have been tried and the accuser and their advisors should have been watchful because it becomes an obligation once the court suggests trying ADR. Approach of Lord Justice Brooke, was: "…the possibility that, if they turn down out of hand the chance of alternative dispute resolution when suggested by the court, as happened on this occasion, they may have to face uncomfortable costs consequences " [19] In the English courts, this case is the first case where the cost order in favour of winner party was not passed by the court indicating the eagerness of the courts towards using the ADR. This also signifies the extent to which the court can go to promote the use of ADR.

Leicester Circuits v Coates Brothers plc relates to the dispute where the defendants did not take into account the suggestion of the insurers even after the arbitration was organised and justified his extraction that the chances of success were limited Court of Appeal charged the defendant with the cost because the defendant agreed on arbitration initially and it was inadequate to use the fact of their being a limited chance of success later. [20] 

In civil action lease matter Royal Bank of Canada Trust Corporation v Secretary of State for Defence the government turned down the intention of the claimant of using arbitration stating that arbitration was inappropriate and has to be taken into court because somehow a part of law was involved. The court refused to acknowledge this as a suitable reason of refusal though. Mr Justice Lewison in this case found that "The dispute was in my judgement suitable for ADR even though the main issue was one of interpretation of a lease." [21] 

The basic idea on the back of suggesting ADR in civil action was that it would be time saving and inexpensive and would leave the litigation as a last option if the parties can solve civil disputes by involving the impartial person and it will leave the proceedings as a last option; mutual consent and voluntarily was the spirit of the process. Nonetheless the parties will involve the courts resulting in increase in the cost and time in case the dispute is not resolved through ADR process. In Re Midland Linen Services Ltd defendant’s lawyers refused to arbitrate by stating the reason as "mediation was simply being thrown into the ring in a further attempt to delay matters and to prevaricate". [22] 

It has been observed on a number of cases that the parties have well arguable claim prior to bringing the case before the courts so it seems inappropriate to undertake ADR on every occasion this is apparent in Allen V Jones here defendant refused to undertake ADR in right of way matter; blocked by the claimant. The refusal of ADR by the defendant was held appropriate by the court as the arbitration in this case was not likely to bring better result than judgement of the court. [23] 

Later on it was founded that ADR was a waste of time, money and caused frustration as it was used as a weapon against the opponent and it was fruitful up to the extent of tactical delay. Delay in the proceedings would amount to deny the justice as "justice delayed is justice denied". Further in this aspect the party have to weave off its certain right and thus projecting ADR as a compromise rather than a mean of justice in case he tries ADR just to avoid fluctuated cost and time.

HRA 1998 [24] has sanctioned the ECHR [25] which prohibits any restraints required for free access to courts. It violates the Act of Conviction as compelling for ADR is a clear conflict with this provision. Various disagreements can easily be observed on this issue, the observation of court in Elanay Contracts v The Vestry Art 6, which gives an appropriate chance to the disputants to bring their case in lights of court because finding of the arbitrator is not definite if their case has no connection with arbitration. Art 6 would be unable to provide any ground for imposing procedural justice relating arbitration in case the arbitrator does not determine the dispute. [26] 

In situation where the parties do not agree to try ADR, whether the court declaration to try ADR would lead to violate the Article 6 of Convention which gives the right to access court? This issue grabs the courts attention. While answering this question in Halsey v Milton Keynes General NHS Trust, Court of Appeal stick to the point that courts do not have right to enforce petitioner trying ADR causing the violation of Article 6 admitting right of the to access court for free trial. [27] 

‘...It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.’ [28] 

Conclusion:

People are encouraged to file cases in order to settle their disputed by introducing new laws regarding protection of individual rights, another reason behind this increase was less tolerance for discrimination in justice. Discrimination regarding race, sex and national origin in public accommodation of employment is out lawed by the Civil rights. Women and environmental movements also encouraged people to bring their disputes in courts causing an overloading tendency, increased number of pendency and long delays creating procedural errors.

Many litigants have already punished by the Civil justice system in the form of high cost and time spent for litigation, thus depriving litigant to access to the justice for this mere reason seems baseless, the fault being of those who are controlling the system since long and still unable to provide the pace and cheap justice but not of the Civil justice system. In this regard, the ADR movement provided assistance to the courts in reducing congestion, making cheap and speedy justice available and promoting community values. As a consequence, a worldwide acceptance of ADR is gained among public and law related people in last three decades, the best example being the present tendency of English courts to encourage the disputant parties to try ADR methods as first option before permitting the cases to be tried in courts.

ADR is believed to be a process used to resolve disputes either within or outside the formal justice by some experts, neglecting the adjudication procedures and decisions of judicial or officers of the stage. A demonstration of historical precursors attached to modern ADR can be seen with the development of ADR. It has its origin in private commercial sector by facilitating the higher sector of society by resolving their disputes outside the formal court structure e.g. labour arbitration have been used to secure labour peace. Excess loads in courts and litigation cost can be reduced by use of early help, arbitration and consensual based considered to be helpful to synchronize in the society where there are common values and ethically or religiously homogeneous area exist. The domination of the civil and formal justice system is still there as ADR is not meant to elude the civil justice system and disputants reconsider use of courts in case ADR fails to resolve their dispute;

"Wining does not require defeating other, but making other person a winner the reality is if all else fails, the alternate today is the court rooms"

It is vital to keep in mind that ADR movement gained support because of its strict adherence with the ideology of harmony, consensual nature and volunteering aptitude. Therefore forcing the parties to the dispute to try the ADR process without their consent will not serve any purpose of natural justice. Since following the CPR English courts can set aside and pronounce the summary judgment therefore forcing the parties to adopt the ADR mechanism at the first instance also violates the CPR. This trend also undermines the English civil justice system and will promote the discrimination and injustice behaviours by the powerful and against the weaker segment of the society. Consequently this afflict the entire process of English civil justice system however a ray of hope has emerged from the case law Halsey v Milton Keynes General NHS Trust. In this case court held that compulsory use of ADR was against provisions of the human right convention which endorses every one’s right to access to the justice and following this judgment Courts of England and Wales will not be in position to force the parties to try ADR before access to the formal courts. Nevertheless parties which try to frustrate the ADR by means of unreasonable behaviour still have to bear the cost of the litigation following the Woolf Reforms and Civil Procedure Rules 44.3(5).