Courts competing for cases? During the Thatcher era, competition and market forces extended to some unexpected areas. This applies to the dispute resolution and court systems; clients and lawyers now often have a wide choice of forums to determine disputes.
In the past it seemed simple. For disputes between citizens the State provided the court system. The County Court had strict financial limits. The High Court had three Divisions, each dealing with different types of cases. For most disputes there was only one proper forum; for example, the Chancery Division.
But now the same dispute could often be determined by several different courts. In solicitors' negligence claims, cases are heard in the Mercantile Court, before an official referee, in the Chancery Divisions, in the Queen's Bench Division, in the Commercial Court, in the County Court before a judge, and within the County Court small claims jurisdiction. The effect is a choice of court for lawyers and clients and, indirectly, competition for business between courts.
But it doesn't stop there. Alternative methods of dispute resolution are proliferating outside of the court system. There are consumer arbitration schemes, formal arbitration under the Arbitration Acts, statutory tribunals, and the number of ombudsman schemes has also risen rapidly.
There are drawbacks in having a variety of provisions: specialist judges are better for some specialist areas; a diffusion of jurisdiction can become a dilution of expertise; there can be the confusion of delay in finding the most relevant forum; the litigation lawyer needs to know and understand the different procedures, limitation periods and costs rules that apply; and finally there is the danger of inconsistency.
I welcome the mixed economy of state and private dispute resolution methods. Many new courts have excellent reputations for responsiveness to the communities they serve. Much of the private provision of dispute resolution has overcome the defects in the court systems of cost and delay. Private schemes do not have to wait for the legislation and rules necessary to implement Lord Woolf's reforms.
Ombudsman, arbitrators and mediators all have a role to play alongside courts. Lawyers and clients will decide which methods are most effective.
