THE COST OF LITIGATION
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb02142.x |
| Author | L. C. B. Gower |
| Date | 01 January 1954 |
| Published date | 01 January 1954 |
THE
MODERN LAW REVIEW
~~
Volume
17
January
1954
No.
1
THE
COST
OF
LITIGATION
REFLECTIONS
ON
THE
EVERSHED
REPORT
THERE
is a tendency to regard procedure and practice as
of
relatively slight importance in comparison with substantive law.
Academic lawyers prefer to ignore
it,
practitioners have become
so
accustomed to its peculiarities that it rarely occurs to them to
criticise its major characteristics,l and law reformers, in general,
concentrate their activities on substantive
A
distinguished
High Court judge once declared that English substantive law was
the worst in the civilised world and English procedure the best,
and this, by and large, is probably the view
of
the average layman,
who believes that the law is an ass, but English procedure and
practice of unmatched excellence.
It
is
not the purpose of this paper to suggest that the latter
part
of
this opinion is unfounded. On the contrary,
it
is believed
that the quality of our judiciary and the standards of our advocacy
are unrivalled, and that few countries,
if
any, can boast of a
system in which to the same extent justice is both done and
manifestly seen to be done to those who can afford to resort
to
the courts. But, and there’s the rub, all too few can afford
it;
for
if
English procedure is the best, it is equally among the most
expensive, and its expense is speedily making
it
a luxury beyond
the reach of most individuals. Until recently only the dwindling
number of the rich could contemplate litigation with equanimity
;
now, thanks to the Legal Aid Scheme, the dwindling number of
the poor with disposable income of under
2420
can face
it
with
even greater n~nchalance,~ but to those in the growing “middle
income brackets
”
it remains ~nattainable.~ The result is that the
The innate conservatism of the legal profession is here at its most extreme,
for reluctance to contemplate change
is
as noticeable among its politically
progressive members as among the politically reactionary.
It
ie significant that the recent series
of
R.B.C. broadcasts (now published by
Messrs. Heffers
sub
tit.
“
Law Reform and Law-Making
”)
contained nothing
about procedure.
So
that justice, unlike the grillroom
of
the Ritz Hotel, is now available
to
those
in the bottom as well as the top drawer.
As
the Evershed Report points
out
(Cmd.
8878,
para.
20)
their
lot
has been
worsened by the Legal Aid Scheme.
1
VOL.
17
1
2
THE
MODERN
LAW
REVIEW
VOL.
17
vast majority of disputes are never fought out. Assuming that
the bargaining power of the parties is equal, the settlement out
of
court is likely to be fair en~ugh,~ and
it
is doubtless
8n
excellent
thing (for all but the lawyers) that there should be an amicable
agreement. But often the economic positions are not evenly
balanced, and when they are not the party with the larger purse
is likely to drive a hard bargain which may amount to a grave
injustice to his financially weaker adversary.
Moreover, and this is almost equally di~turbing,~s even those
who can afford litigation (such as powerful commercial corpora-
tions) are displaying an increasing reluctance to indulge in it.
The practice of resorting to arbitration is becoming ever more
common, with the result, for example, that the work of the
Commercial Court has dwindled to a small fraction of what
it
was
in its heyday.
In
other words, litigation is fast becoming a luxury which few
can afford, and which many of those who can, prefer to do
without. At the worst the result is a denial
of
justice; at the best
it
marks the atrophy of the traditional judicial system
of
which
we are deservedly proud.
If,
as is believed, this is an accurate
diagnosis,
it
is apparent that the traditional attitude of apathy
and complacency
is
a dangerous anachronism.
In
the light of these considerations the importance of the work
of the Evershed Committee, whose final report has just been
published,6 can scarcely
be
exaggerated. The object of this paper
is to review briefly the Committee’s recommendations, to consider
whether,
if
implemented, they might provide a sufficient cure
of
our ills, and to suggest what follows
if
they would not.
It
should, perhaps, be said at once that professional reaction
to the final report has been a mixture of disappointment and relief.
This lukewarm reception has been due, not
so
much to objections
to what is recommended (although the Bar, as might have been
expected, has reacted strongly to the suggested limitation
on
the
amount of
‘‘
refreshers
’)
’),
as to a general feeling that the
recommendations are less far-reaching than are needed and had
been expected. The Committee must take some blame for this
reaction, for they certainly aroused false hopes,
or
fears, of
something more sweeping
;
having deliberated for six years and,
in an interim report, hinted at
“
decisions-possibly far-reaching
5
But
if
one party is obstinate he may force his more reasonable opponent to cut
his losses by abandoning
a
just claim.
58
Particularly
as
the arbitration clause is commonly in
a
’‘
contract
of
adhesion
”
which the other party has no option but to accept. thus forcing him
to
submit
to
an
adjudication conducted without the safeguard of publicity.
6
Cmd. 8878/53.
This
followed interim reports published
as
Cmd.
7764/49
(noted in
12
R1.L.R.
483).
Cmd. 8176/51 (noted in 14
M.L.R.
325), and Cmd.
8617/52 (deallng with the Durham Palatine Court).
7
See
‘I
Q.C.’s
”
letter in
The
Timcs, July
24,
1053.
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