Civil Justice in the Age of Human Rights

Joseph M. Jacob

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317165637
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

The end of the last century witnessed two major events in the field of civil justice: the Civil Procedure Rules (CPR) came into force and the Human Rights Act (HRA) gave effect to the European Convention on Human Rights. This volume assesses the effect of the Act and attempts to reconcile the expediency and efficiency essential to modern civil justice with the need for recognition of human dignity and equality inherent to human rights. The book is primarily concerned with the effects of the HRA on civil procedure and, in particular, the effects on the CPR. It examines the view that the new civil procedure regime could be susceptible to HRA challenges. More specifically, the work discusses whether there are differences between the CPR and the ECHR ideas of what constitutes a fair trial or just decision and between their views of proportionality. The study notes the differences between common and civil law and discusses whether there is any coming together with other European systems. This book will be a valuable resource for academics and researchers as well as lawyers and judges with an interest in the practical implications of the HRA.

Chapter 1

Introduction

The Issue

I have spent roughly three score years in and around the law. But it has been the English common law and I can live in the sure and certain knowledge that the more essential a principle is expressed to be, the more easily it can be abandoned: like every Englishman and Englishwoman, the common law knows no fundamentals. Nor, indeed, despite a century and half of largely noble, academic endeavours,1 does it know with any accuracy of any classification that can explain its past or its present. It is a homogenous whole to be understood, not in pieces, but as a single unity. It is not a historical progression but a living organism. Post-decision classification by black-letter legal academics certainly helps understanding but it does not explain. Even the simplest division, say between civil and criminal law, fails to withstand the reality of actual rules.2 To the common law, it really is sufficient that where there is a (legal) wrong there is a legal remedy.3 It does not even mind the apparent tautology.

Suddenly, at the end of the most brutal century in history, our legal system began to absorb and even create principles (in civil procedure the most obvious are contained ‘the overriding objective’ set out in Civil Procedure Rules, Part I, but our judges were and are often searching for others and across a wider front) as well as a host of human rights and fundamental freedoms.4 To be sure, each of the legal systems of the modern world that has adopted these ideas has applied them to all economic actors and not only living, breathing people. Companies, however large, have human rights, but apparently only inchoate duties! That is to be expected. It would be to ask too much for law to reflect humanism as well as justice.5

The end of the last century saw two major events: the Civil Procedure Rules (the CPR) came into force6 and the Human Rights Act 1998 (HRA) gave effect to the European Convention on Human Rights (the ECHR).7 This book assesses the effect of the Convention on the Act.

Thinking about human rights in general is, in part, an attempt to identify a rational system for the recognition of human dignity and equality. Modern civil justice is concerned with expediency and efficiency. If there is any justification for this book, it is twofold. It attempts to reconcile these sometimes opposing approaches or at least to identify the conflicts. Secondly, it seeks to find out how far the imposition of each of these new ideologies and these (for us) novel methods of analysis affect what the law always takes for justice,8 assuming (as we must) that justice is something different from majesty, from mere Royal will.9 It is an uncomfortable assumption but one which is becoming more real. As we shall see, modern judges are expected to satisfy the litigants before them, if need be, by giving reasons for their decisions. The judges have become another subject of our democratic age. Yet, because they, like the law itself, have come from a past whose practices were better explained by habit than sense, the giving of reasons is sometimes the object of tortuous explanation.

Writing in 1990 Cappelletti observed:10

The human rights philosophy has been the most important contribution not only of the West, but of humankind generally, to political science and moral philosophy. What is new in our epoch, however, is the full recognition of the insufficiency of a mere philosophy of human rights – the recognition, that is, that adequate machinery and processes are needed to make those rights effective.

This, he said, is the ‘most challenging revolution of which all proceduralists are … the most militant revolutionaries’. Proceduralists know about means. To Cappelletti the good ones among them never lose sight of the ends, and the end he had in mind is access to justice for all.

This book is about the weapons available to our contemporary revolutionaries. In doing so, one objective is to increase awareness of the possibility and utility of this most modern perspective on civil trial processes. More importantly, it is a search for socially relevant purposes within the apparent dryness of how things are done. Civil procedure has often been compared to the rules of a game – football, cricket, tennis. This book is written in the conviction that it is more, maybe far more. Procedure is not just rules. It is the means by which society expresses its underlying meaning.

The principles I see in the ECHR, in the CPR and in the case law both of the European Court of Human Rights at Strasbourg (the ECtHR) and Britain which are at issue in this book, are fourfold:

1. trials must be open to the public;

2. there shall be equality of arms between maybe unequal disputants;

3. the tribunal shall be impartial; and,

4. a decision shall be given in a reasonable time.

Of these, the first three have most troubled the English courts. It is clear that systemic delay is one of the biggest problems across the Council of Europe as a whole,11 and, that we have nothing be complacent about. Nevertheless, for us, each of the first three has caused the deeper and more intractable problems. I shall argue that of these four issues, the first is the most important if only because if the public cannot see what is being done, the adherence to the rule of law achieved by the others matters less.

Daniels v Walker12 was decided in the early days of the new civil procedure regime and shortly before the HRA came into force. Having cited Part 1 of the CPR Lord Woolf said13 these ‘provisions … make it clear that the obligation on the court is to deal with cases justly’, and added:14

If the court is not going to be taken down blind alleys it is essential that counsel, and those who instruct counsel, take a responsible attitude as to when it is right to raise a Human Rights Act point … It would be unfortunate if case management decisions … involved the need to refer to the learning of the European Court on Human Rights in order for them to be resolved … I hope that judges will be robust in resisting any attempt to introduce those arguments … When the 1998 Act becomes law, counsel will need to show self restraint if it is not to be discredited.

This book is thus concerned with the effects of the HRA on civil procedure and in particular its effects on the CPR.15 It asks whether Lord Woolf was right to worry that the new civil procedure regime could be susceptible to numerous HRA challenges. (I leave aside any discussion of the constitutional propriety of the guidance to future judges and advocates – their role, on the one side, is not to be robust in resisting anything it is to decide according to law and, on the other, fearlessly to put a client’s case as effectively as possible.)16 More specifically this book asks whether there are differences between the CPR and ECHR ideas of what constitutes a fair or just decision and between their ideas of proportionality. How far, if at all, do decisions on the meaning of one influence decisions on the other?17

To anticipate part of the argument, Lord Woolf could take comfort for his position from the Civil Procedure Act 1997. Section 1(3) charges the Rules Committee to: ‘make Civil Procedure Rules … with a view to securing that the civil justice system is accessible, fair and efficient.’ Under this power the Rules Committee has made the CPR.

The CPR themselves open with the declaration of their Overriding Objective. Sedley LJ described its importance:18

A generation ago, Blain J, giving judgment in a long forgotten interlocutory matter, said that litigation was not to be conducted as if it were warfare. In those days the remark represented no more than a fleeting triumph of hope over experience. It is only with the introduction of the Civil Procedure Rules that the hopes of Blain J and many others like him have become reality. The Civil Procedure Rules are not, as at times the Rules of the Supreme Court seemed to be, a sort of Hague Convention regulating the worst excesses of warfare, which litigants were otherwise free to conduct as they saw fit. The overriding objective makes this plain.

The Overriding Objective says19 the rules are to enable ‘1.1(1) … the court to deal with cases justly’, defined to include ‘(2)(d) ensuring that [a case] is dealt with expeditiously and fairly’. It is unclear why the draftsman of rules departed from the terms of the Act – that requires the rules be fair, etc., whereas the rules open by speaking of cases being dealt with justly and does not mention fairness until (2)(d) – but it is doubtful whether anything will ever turn on this drafting.

Both the CPR and the HRA make unusual provision for interpretation. In the CPR the Overriding Objective is to be used in interpreting any rule and applying any discretion. And, overarching even this, s. 3(1) of the HRA says: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. S. 2 requires the UK court to ‘have regard’ to the Strasbourg jurisprudence.20

Thus far, Lord Woolf’s position seems to be confirmed.

Article 6(1) of the ECHR says:

In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

The ECHR Art. 6 has a different emphasis from CPR Part 1. Both instruments talk of the need for a fair or just trial. The Convention is, however, of 1950.21 It is concerned with a static idea, the public determination of rights. To the ECHR, justice is an absolute, but, as its court recently said: it22

has repeatedly stated that its judgments in fact serve not only to decide those cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties.

Lord Steyn’s description of the ECHR as,23 an ‘ageing charter of fundamental rights’ is open to misunderstanding. As he more accurately said:24 ‘The logic of dynamic interpretation is inexorably that the meaning of a statute may change over time. It is a fairy tale to think otherwise.’ The CPR is concerned with the efficient disposal of disputes that might or might not involve the determination of ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Table of Statutes
• Table of Statutory Instruments
• Table of Cases
• Preface
• Acknowledgements
• 1 Introduction
• 2 Open Justice
• 3 Equality of Arms and Related Doctrines
• 4 Disclosure and Restrictions on Evidence
• 5 Impartial and Independent Judges
• 6 And So?
• Index