Interlocutory Remedies in Quest of Procedural Fairness1
| Published date | 01 May 1993 |
| Date | 01 May 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02676.x |
| Author | A.A.S. Zuckerman |
May
19931
Interlocutory Remedies in
Quest
of
Procedural Fairness
Interlocutory Remedies in Quest
of
Procedural Fairness’
A.A.S.
Zuckerman
*
Procedural Impartiality and Protection
of
Rights
Views may differ whether the aim of civil procedure is to see to the peaceful and
effective resolution of disputes or whether it is exclusively the ascertainment of
truth.2 We may be divided on whether the justification for procedural rules hinges
on their contribution to the correct application of the law or whether there are some
inherent procedural principles that must be respected regardle~s.~ There are,
however, principles of elementary fairness which are universally a~cepted.~
Prominent amongst them is the principle of impartiality. It requires, at the most
basic level, that the court approach a dispute with an open mind and show no special
preference for one litigant over the other.s
The requirement of impartiality is not, however, confined to judicial behaviour.
It demands that legal institutions generally treat competing interests evenhandedly
and show equal concern for opposing litigants. The notion of impartiality has,
therefore, implications for the structure of procedure, as well as for the behaviour
of officials.6 The machinery of justice, the process by which rights are enforced,
must not, for instance, confer an advantage on one litigant at the expense of another
litigant, who has a claim to equal respect. It must not favour defendants over plaintiffs,
or vice versa, just as it must not favour the state over private litigants. A rule which
required plaintiffs to establish their claim beyond reasonable doubt would treat
litigants unequally because it would signify, to use a well worn terminology, that
the law prefers a hundred liable defendants to go free, at a loss to their plaintiffs,
rather than risk one non-liable defendant being found liable.
The fact that it is largely a matter of chance whether a person will be a plaintiff
or a defendant in any future litigation does not make discrimination between plaintiffs
and defendants acceptable. Although litigants are not entitled to insist that the state
provide them with the best and most accurate procedure regardless of expen~e,~
they are entitled to expect that such procedure as is adopted should be evenhanded
and treat opponents equally. Equal treatment of opponents requires that they both
be afforded the benefit of the same procedural safeguards. It means that both parties
have an equal right to pursue the available procedural avenues in order to establish
their contentions. Just as the plaintiff is entitled to make use of the facilities of civil
procedure (pleadings, discovery, exchange of witness statements and trial hearing)
*University College, Oxford.
1
Substantial assistance has been derived from comment and criticism by Professor D.J. Galligan, Cyril
Glasser, Sir Jack Jacob and Dr A. Stein. The research for this paper was supported by the Leverhulme
Trust.
2
M. Bayles, ‘Principles for Legal Procedure’
(1986)
5
Law
and Philosophy
33.
3
R.S. Summers, ‘Evaluating and Improving Legal Processes
-
A Plea for “Process Values”’
(1974)
60
Cornell L Rev
1.
4
For a discussion of the concept of fairness, see D.J. Galligan,
Discretionary
Powers:
A
Legal
Study
of
Oficiul
Discretion
(Oxford: OUP,
1986) 152, 252, 326.
5
See M.H. Redish and L.C. Marshall, ‘Adjudicatory Independence and the Values of Procedural Due
Process’
(1986) 95
Yale
U
455.
See also Article
6(1)
of the European Convention for the Protection
of Human Rights and Fundamental Freedoms.
6
See Bayles, n
2
above, at pp
55-56.
7
R. Dworkin, ‘Principle, Policy, Procedure’ in
A
Matter
of
Principle
(Cambridge, Mass: Harvard
University Press,
1985) 72.
325
0
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1993
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before his claim is disposed of,
so
is the defendant entitled to avail himself of these
procedures before his defence is disposed of.
A
defendant may legitimately object,
therefore, to court interference with his rights before exhausting these opportunities
and receiving final judgment. Fairness, in other words, requires equal treatment,
and equal treatment implies non-interference with the defendant’s rights before
judgment.
Commendable as this requirement of fairness is, unwavering adherence to it may
itself be a source of unfairness, because a legal pre-judgment restraint could leave
the defendant free to take action which will ensure that, by the time the court comes
to giving judgment, nothing is left to pronounce upon. Faced with such a prospect,
the court is presented with a difficult dilemma. If the court remains impartially passive
until the plaintiff has proved his entitlement, the defendant might in the meantime
destroy the plaintiffs rights.8 This would reflect badly on the legal process for two
reasons.
A
procedure which allows a litigant to defeat his opponent’s entitlement,
without the latter having the benefit of adjudication, is partial towards those who
have the power to destroy rights pending litigation. Further, such procedure fails
to give sufficient weight to the protection of substantive rights, when such protection
must be a central object of the legal proce~s.~ However, the opposite course of
pre-judgment interference is equally problematic.
A
court which restrains the
defendant pending judgment thereby shows partiality to the plaintiffs interests.
Moreover, such pre-judgment interference might itself undermine substantive rights,
due to the inevitable risk of error. Namely, the risk that it will emerge in final
judgment that the plaintiff had no right to interfere with the defendant’s freedom
of action, and that the interference will have harmed the defendant’s legitimate rights.
It is essential to appreciate that this dilemma leaves no room for escape.
A
failure
to restrain the defendant, as much as ordering restraint, constitutes preference for
the interests of one of the parties.’O Neither a universal ban on pre-judgment inter-
ference with rights, nor its opposite
-
a general rule of interference pending judgment
-
can provide a solution to the dilemma, because each involves either partiality
or
neglect of substantive rights
or
both. Given that no universal solution is available,
answers have to be found on a case by case basis.
Interlocutory remediesIoA provide the procedural means for seeking appropriate
solutions to this inescapable dilemma. Their aim is to obtain a satisfactory balance
between, on the one hand, the need to reduce the risk of harm to lawful rights pending
litigation and, on the other hand, the imperative of impartiality which argues for
non-interference prior to final judgment. The optimal balance which interlocutory
remedies aim at is the bare minimum of pre-judgment interference consistent with
the protection of rights. This delicate balance has to be struck in circumstances of
uncertainty, because prior to judgment it cannot be legally known who is in the
right. Interlocutory remedies, therefore, employ some basic fact-finding and law
determining measures to minimise the risk of error. Inevitably, these measures are
no more than rudimentary mechanisms dictated by the necessity of making a rough
assessment of the facts and issues in dispute
in
order to find a timely solution, however
fallible, to an inescapable and pressing problem.
Traditionally, English law has regarded the interlocutory injunction as its principal
8
9
10
A
plaintiff too might be in a position to destroy his opponent’s rights pending trial.
Bentham,
2
Works
of
Jeremy Bentham
(London: Bowring edn,
1838-1843)
1,
6.
For
discussion of
Bentham’s views, see
G.
Postema,
Bentham and rhe Common
Law
Tradition
(Oxford: OUP,
1988).
J.
Leubsdorf, ‘The Standard for Preliminary Injunctions’
(1978) 91
Ham
L
Rev
525.
10A
The term “Interlocutory remedies” is used to denote provisional orders designed to protect rights
pending litigation.
0
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Modern
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Limited
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