"Cutting the Cloth to Fit the Dispute: Steps Towards Better Procedures Across the Jurisdictions"

On 1 September 2016, Lord Thomas of Cwmgiedd (the Lord Chief Justice of England and Wales) delivered his vision for the procedural future of dispute resolution at the Singapore Academy of Law Annual Lecture 2016, click here to view the document.

In his view, procedure is as important to the delivery of justice as the law itself, and he considers that the time has come for a radical re-think in relation to how Courts might achieve justice.

Lord Thomas recognises that technology is the key to achieving a unified, efficient and cost-effective approach to procedure, and he suggests a three-pronged approach:

  • Design of a single, generic code: Lord Thomas envisages one basic IT system to cover the different civil, family and, possibly, criminal jurisdictions, with a core, common set of procedures.
  • Procedural Guides: The system would be supported by a number of guides (specific to a particular jurisdiction) to ensure the proportionate handling of different sized claims. The guides would allow litigants to tailor pre-trial, trial and dispute resolution processes to their needs.
  • A transnational civil procedural code: The system could be rolled out to foreign jurisdictions to minimise the differences between national systems, thus reducing costs and providing greater certainty to litigants who engage in domestic litigation in a foreign jurisdiction.

In terms of implementing his vision, the process should be led by the judiciary with support from court users, litigation lawyers and international law firms in scoping, costing and developing the changes. Lord Thomas sees judiciaries from around the world coming together (potentially through the International Forum of Commercial Courts) to start the international convergence process with wide consultation with professions and businesses.

Comment

Lord Thomas' vision is certainly ambitious and presents many challenges. However, with modern day litigation being marred by rising costs and unnecessary delays, harnessing technology to build a better system from the ground up is an appealing, if not crucial, goal if access to justice is to be maintained.

The key will be to start small by designing a (domestic) system that is sufficiently robust to resolve low value disputes. Once a core set of principles has been established it would not take long for these principles to be scaled up and developed for higher value claims and, ultimately, be adopted in foreign jurisdictions.