Procedure
In a recent Daily Mail article (02/09/10) Lord Hamilton, Lord President, jumped on the bandwagon of reforms to suggest the legal system is riddled with needless delays and is a waste of taxpayers money. The delays are caused by courtroom inefficiencies and the churn of cases "adjourned" because of blunders.
Why is court management seen as problematic? It would appear that there are "spurious attempts being made to delay justice".
As Lord Hamilton has direct charge of managing the courts he is highlighting the scale of the task he is facing as he tries to wipe out deep-rooted inefficiencies. Requests for adjournments appears to be key linked to lack of case preparation or timeous witness testimony being taken. However it is unclear from the article which appears to focus on the criminal justice system whether civil justice is included in his rounds of inefficiencies. The article establishes that three out of four cases are now being disposed of within 26 weeks (ie approx 6 months) in the criminal justice system which he says shows the criminal justice agencies are working harder than ever to ensure justice. Good news.
It would appear to me that the matter is quite easy to resolve. In the earlier stages of this blog's posts is posted a whole court case in the civil courts of England from Employment Tribunal to House of Lords. There are key stages in any PROCEDURAL SYSTEM that have to be met. Any delays could easily be dealt with electronically, ie an electronic contempt of court and fine of a party to litigation (civil) or (criminal). My case is electronically loaded to a file server but I could load it directly to this blog via a pdf system - the courts are supposed to be "public" after all and my blog's posts show the extent of the corruption that I was subjected to by the judiciary and respondents (none of which was dealt with by the police upon several requests to do so for perversion of the course of justice). With contempt of court orders there is a fine line between deliberate delays by parties to a case being processed for perversion of the course of justice. Lawyers are wily in their ability to delay a case unnecessarily which goes against the principle of "equality before the law" not after it. (I have a case in England which has been stayed for 4 years because of the respondents machinations with complicity of the judiciary for which again the police will not deal with matters as perversion of the course of justice, nor has it been dealt with on appeal either). Judges are not "beyond reproach" and can be processed for misconduct in public office just the same as anyone else albeit this may only be an English jurisdiction offence and my cases are based in England. But perversion of the course of justice and contempt of court could ideally be used as a judge's tool to stop the worst offenders who know a judge will adjourn a case, rather than force the parties to be ready come what may. With court management comes responsibility to both parties as it should be very rare indeed that a case goes to an appeal court (which is normally on a point of law only, but rarely on evidence alone). It is therefore in a judge's own interests that he has control of his court room and is impartial.
The Woolf Reforms in England dabbled with the courts principles - away from equality, impartiality, fairness and justice TO proportionality, economy, expedition and (not traditional equality but contemporary equality - compromise - Alternative Dispute Resolution(ADR)mediation). This new emphasis in England anyway means court procedure should have been enhanced and with case marshalling occurring electronically should mean the Lord President is in a position even in Scotland to show how many cases are in the system at any one time, where the case procedure is at, who is causing delays and why, whether settlement has occurred or whether judgment is made and at what expedition has occurred from start to finish. These statistics should be available and publically to make the system transparent. There are perhaps 5 or 6 necessary procedural steps to a case - issue of writ, defence and/or counterclaim, discovery, witnesses then trial. The onus should be on the parties resolving their disputes and whittling down the issues in the case. With today's technology all of this material can be "uploaded" to a court by a time set by the judge (not the parties) with contempt of court orders or perversion of the course of justice orders automatically going out when not heeded to. A judge afterall works on a fortnightly or monthly scheduling basis and if a case settles early there is a gap in scheduling which could move things forward on cases that are smaller. With electronic discovery it should be easier to do "causation" as it is always going to be in the earliest documents the remainder focused on "effect" (unless metalipsis - reversal of cause and effect), it could easily be a procedure to state exactly causation and provide evidence in support in a Skeleton Argument if this is not already done. A judge should always be focussed on trial, it is for the parties to settle their case before trial. So when writ is issued so should a provisional trial date be issued with an electronic schedule of when the judge wants documents into court and if preparation is earlier then the date could be brought forward even in fairly substantial litigations. How many cases have more than 5 lever arch files of evidence - the majority of cases are likely to be quite small and a judge could issue a contempt of court order if "causation" and "effect" documentation are burdensome or not clearly getting to the issue - lawyers are trained to do discovery. (In one of my court cases I had to provide an "agreed" court bundle and a "disagreed" court bundle because respondents' Solicitors or Counsel removed evidence provided on discovery from the agreed bundle and refused to do proper discovery.) There is no reason why Lord Hamilton cannot create a procedure so as to cause efficiency, but as likely as not a contempt of court order would have sufficed. (In my case, a contempt of court order was not forthcoming albeit the judge did permit the disagreed court bundle "in the interests of justice". I lost the case, probably because I had not perceived the strength of one page of evidence provided by respondent's on their discovery of documents, so their tactic worked as I was too focused on getting my evidence in which had the same information over 20 pages or so which the judge should have been astute to in any event). Whittling down the case as evidence and testimony surfaces should be more focused on by judges and would aid settlement.
So from my experience in civil litigation on a two lever arch file case for court improvement I would suggest:
* Clearily focus on the 5/6 crucial steps to trial
* Case marshall and provide an electronic map to trial
* Electronic uploading of documents of 5/6 crucial steps
* Electronic contempt of court or perversion of the course of justice orders
* Contempt of court order for flooding documentation
* Clearly identify "cause" and "effect" and the cut off between the two
* If you must have them, Skeleton Arguments clearly identify cause with exact evidence in support attached
* Statistical breakdown of cases on a 6 monthly cut off date
* Feedback - ask the parties to the litigation what they thought of the case management or judgment, courtroom control
* Contempt of Court fines - use them to do some good - pro bono or something else
* Get rid of most non-necessary procedural rules, ie ex parte hearings
* Empower people and value litigants in person in the system as they establish that the system does actually work FOR THE PEOPLE! not lawyers pockets. A justice system should not be so difficult that an ordinary person can't use it.
* Process all article 6 human rights claims as perversion of the course of justice which is what it really is.
* Remember it should be rare for a case to go to appeal! which belies the competence of the JUDGE!
* There is a material difference between corruption and a miscarriage of justice - the former requires deliberate judicial nonsense, the latter judicial inadvertence or lack of evidence as opposed to deliberate withholding of evidence.
The old cliche "its not rocket science" springs to mind but courtroom control is key and judges already have an arsenal to deal - they just have to be willing to do so which requires equality, impartiality, fairness and justice!
Why is court management seen as problematic? It would appear that there are "spurious attempts being made to delay justice".
As Lord Hamilton has direct charge of managing the courts he is highlighting the scale of the task he is facing as he tries to wipe out deep-rooted inefficiencies. Requests for adjournments appears to be key linked to lack of case preparation or timeous witness testimony being taken. However it is unclear from the article which appears to focus on the criminal justice system whether civil justice is included in his rounds of inefficiencies. The article establishes that three out of four cases are now being disposed of within 26 weeks (ie approx 6 months) in the criminal justice system which he says shows the criminal justice agencies are working harder than ever to ensure justice. Good news.
It would appear to me that the matter is quite easy to resolve. In the earlier stages of this blog's posts is posted a whole court case in the civil courts of England from Employment Tribunal to House of Lords. There are key stages in any PROCEDURAL SYSTEM that have to be met. Any delays could easily be dealt with electronically, ie an electronic contempt of court and fine of a party to litigation (civil) or (criminal). My case is electronically loaded to a file server but I could load it directly to this blog via a pdf system - the courts are supposed to be "public" after all and my blog's posts show the extent of the corruption that I was subjected to by the judiciary and respondents (none of which was dealt with by the police upon several requests to do so for perversion of the course of justice). With contempt of court orders there is a fine line between deliberate delays by parties to a case being processed for perversion of the course of justice. Lawyers are wily in their ability to delay a case unnecessarily which goes against the principle of "equality before the law" not after it. (I have a case in England which has been stayed for 4 years because of the respondents machinations with complicity of the judiciary for which again the police will not deal with matters as perversion of the course of justice, nor has it been dealt with on appeal either). Judges are not "beyond reproach" and can be processed for misconduct in public office just the same as anyone else albeit this may only be an English jurisdiction offence and my cases are based in England. But perversion of the course of justice and contempt of court could ideally be used as a judge's tool to stop the worst offenders who know a judge will adjourn a case, rather than force the parties to be ready come what may. With court management comes responsibility to both parties as it should be very rare indeed that a case goes to an appeal court (which is normally on a point of law only, but rarely on evidence alone). It is therefore in a judge's own interests that he has control of his court room and is impartial.
The Woolf Reforms in England dabbled with the courts principles - away from equality, impartiality, fairness and justice TO proportionality, economy, expedition and (not traditional equality but contemporary equality - compromise - Alternative Dispute Resolution(ADR)mediation). This new emphasis in England anyway means court procedure should have been enhanced and with case marshalling occurring electronically should mean the Lord President is in a position even in Scotland to show how many cases are in the system at any one time, where the case procedure is at, who is causing delays and why, whether settlement has occurred or whether judgment is made and at what expedition has occurred from start to finish. These statistics should be available and publically to make the system transparent. There are perhaps 5 or 6 necessary procedural steps to a case - issue of writ, defence and/or counterclaim, discovery, witnesses then trial. The onus should be on the parties resolving their disputes and whittling down the issues in the case. With today's technology all of this material can be "uploaded" to a court by a time set by the judge (not the parties) with contempt of court orders or perversion of the course of justice orders automatically going out when not heeded to. A judge afterall works on a fortnightly or monthly scheduling basis and if a case settles early there is a gap in scheduling which could move things forward on cases that are smaller. With electronic discovery it should be easier to do "causation" as it is always going to be in the earliest documents the remainder focused on "effect" (unless metalipsis - reversal of cause and effect), it could easily be a procedure to state exactly causation and provide evidence in support in a Skeleton Argument if this is not already done. A judge should always be focussed on trial, it is for the parties to settle their case before trial. So when writ is issued so should a provisional trial date be issued with an electronic schedule of when the judge wants documents into court and if preparation is earlier then the date could be brought forward even in fairly substantial litigations. How many cases have more than 5 lever arch files of evidence - the majority of cases are likely to be quite small and a judge could issue a contempt of court order if "causation" and "effect" documentation are burdensome or not clearly getting to the issue - lawyers are trained to do discovery. (In one of my court cases I had to provide an "agreed" court bundle and a "disagreed" court bundle because respondents' Solicitors or Counsel removed evidence provided on discovery from the agreed bundle and refused to do proper discovery.) There is no reason why Lord Hamilton cannot create a procedure so as to cause efficiency, but as likely as not a contempt of court order would have sufficed. (In my case, a contempt of court order was not forthcoming albeit the judge did permit the disagreed court bundle "in the interests of justice". I lost the case, probably because I had not perceived the strength of one page of evidence provided by respondent's on their discovery of documents, so their tactic worked as I was too focused on getting my evidence in which had the same information over 20 pages or so which the judge should have been astute to in any event). Whittling down the case as evidence and testimony surfaces should be more focused on by judges and would aid settlement.
So from my experience in civil litigation on a two lever arch file case for court improvement I would suggest:
* Clearily focus on the 5/6 crucial steps to trial
* Case marshall and provide an electronic map to trial
* Electronic uploading of documents of 5/6 crucial steps
* Electronic contempt of court or perversion of the course of justice orders
* Contempt of court order for flooding documentation
* Clearly identify "cause" and "effect" and the cut off between the two
* If you must have them, Skeleton Arguments clearly identify cause with exact evidence in support attached
* Statistical breakdown of cases on a 6 monthly cut off date
* Feedback - ask the parties to the litigation what they thought of the case management or judgment, courtroom control
* Contempt of Court fines - use them to do some good - pro bono or something else
* Get rid of most non-necessary procedural rules, ie ex parte hearings
* Empower people and value litigants in person in the system as they establish that the system does actually work FOR THE PEOPLE! not lawyers pockets. A justice system should not be so difficult that an ordinary person can't use it.
* Process all article 6 human rights claims as perversion of the course of justice which is what it really is.
* Remember it should be rare for a case to go to appeal! which belies the competence of the JUDGE!
* There is a material difference between corruption and a miscarriage of justice - the former requires deliberate judicial nonsense, the latter judicial inadvertence or lack of evidence as opposed to deliberate withholding of evidence.
The old cliche "its not rocket science" springs to mind but courtroom control is key and judges already have an arsenal to deal - they just have to be willing to do so which requires equality, impartiality, fairness and justice!
posted by Lesley McDade at 1:53 pm
0 Comments:
Post a Comment
<< Home