Civil Procedure and the Lawyers—The Adversary System and the Decline of the Orality Principle

Date01 May 1993
Published date01 May 1993
The Adversary System and the Decline
the Orality Principle
Civil Procedure and the Lawyers
The Adversary
System and the Decline
the Orality Principle
For so long the adversary system and the principle of orality have been the dominant
characteristics of the English system of civil litigation. Both of these features have
now come under sustained attack and it may be that a modem approach to dispute
resolution will require considerable adaptation, and even rejection, of existing
procedural forms if we are to provide adequate mechanisms for the determination
of civil claims. Such a discussion is not simply a matter of choosing alternative
structural philosophies. It involves a search for procedures which will afford speedy,
economic, effective and, above all, appropriate means for the redress of private
grievances which the legal system recognises as being amenable to process. In a
society which has become ever more socially and technologically complex, and where
group interests have become increasingly important, the role of courts and civil
settlement processes will become an ever more important focus of interest. In this
country the reform of civil procedure and the litigation process has been intimately
bound up with the social organisation of the legal profession and, in particular, with
the status and function of the judiciary and the Bar. If our procedures need to alter
then our lawyers will also have to change.
The concept of English civil litigation as an adversary process does not simply
acknowledge that the parties are opposed to each other in some formal sense. In
his Hamyln Lectures, the greatest of our modern procedural thinkers, Sir Jack Jacob,
has carefully analysed the historical and cultural background to the development
of our system and concluded that the essence of such adversity lies not only in the
relationship between the parties, but also in the function of the courts.' English
civil litigation has always been regarded as a predominantly voluntary system in
which the parties play a dominant role in formulating and developing the demand
for a remedy and the presentation of the factual and legal issues for determination
by the court. Within this framework the parties are free to bargain for settlement,
within or without the available court procedures, and to withdraw the case at any
stage prior to judgment. By contrast, the court, representing the wider public interest
in the peaceful resolution of disputes, remains neutral and inactive towards the parties,
regulating the way in which the disputants must proceed if they are to obtain finality
in the action and responding only to interlocutory applications made to it and the
necessity to deliver judgment after a trial has taken place.
These generalised notions raise complex problems. In a seminal work, Mirjan
Damaska has questioned the degree of dominance exercised by the parties in civil
proceedings in the common law world and has doubted whether the passive role
of the court is as necessary as appears to be the case. He raises the possibility that
there are cases where the court is entitled to override the parties' actual or presumed
wishes and develop matters of its own motion by reference to some concept of public
interest, especially where the integrity of the system may be at stake.* It is impor-
*Solicitor, Faculty of Law, University College London.
The Fabric
English Civil Justice
(Stevens, 1987)
The Faces
Justice and State Authority
(Yale UP, 1986)
The Modern Law Review Limited 1993 (MLR 56:3, May). Published by Blackwell
Publishers, 108 Cowley Road, Oxford
1JF and 238 Main Street, Cambridge,
MA 02142, USA.
tant to remember that a civil procedure which regulates the behaviour of a relatively
small proportion of cases which cannot settle without resort to the legal process
may influence the compromise of many more disputes outside the court process
at an early stage.
At first sight there is no direct connection between the notion of an adversary
system and the principle of orality. For Sir Jack Jacob, however, the two matters
are closely intertwined. He sees the use of orality as an essential medium by which
litigants and their advisers vindicate a system of party control, especially by the
fostering of the physical immediacy and interaction which such orality brings. For
Sir Jack, the cost and delays which may result from even the process of reading
out aloud and discussing written materials in open court, may be justified by the
demonstration of the dominance of party control which such an activity evinces,
since it functions as a means to promote the ascertainment of truth and the production
of the correct de~ision.~
In practice it may be unwise to generalise too much about the detail of the English
legal system. What is applicable to the landscape and rarefied atmosphere of the
Queen’s Bench Division of the High Court may not be true elsewhere. The country
has many different types of statutory tribunals with procedures which are inquisitorial
in nature, where legal representation does not exist in practice, where much of the
work is done on paper, and where there is a lack of publicity. In the High Court
itself, the work of the Chancery and Family Divisions may often be conducted largely
on paper and in private. And we now have a developing alternative dispute resolution
movement which may attempt to divert existing work from the courts or to promote
different types of dispute solving, which may involve alternative third party
participation, such as conciliation, mediation or arbitration.
Nevertheless, there is a sense in which the procedure which regulates the conduct
of litigation in the Queen7s Bench Division can provide us with a model of the aims
and purposes of the adversary system, embodying perceptions held by elite members
of the legal profession about the function of the procedural system. It also provides
us with a means of assessing the extent of participation by the state in private disputes
between citizens. This does not simply consist of an interest in the provision of
adequate court machinery. The need to limit the cost of court services and the
provision of legal aid has become a major preoccupation of the government depart-
ment involved. In this context the neutrality of the court is replaced, not by a desire
to play an inquisitorial role in the substance of the dispute itself, but by an active
need to ensure that litigants are closely supervised in their use of public resources.
The state is concerned to ensure that the parties move through the system as quickly
as possible, prepare their case for trial in a tightly controlled manner and be made
to exchange information with the other side in accordance with court-directed
timetables. The role of the court in operating of its own motion becomes enhanced
in this way, even extending to striking out actions which languish untried on the
court docket for want of prosecution.
In recent years English procedure has witnessed an erosion of the adversary and
orality principles, marked by increasing intervention by the court in the interlocutory
process in order to force the parties to trial and in a greater reliance on the use
of written materials. With the recent promulgation of new Rules relating to the
compulsory exchange of witness statements, the English system has entered a new
phase involving a redefinition of the ability of the parties to control the progress
of their own cases.
The Modern Law Review Limited

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