The paradigm of legal redress in action is the trial. A hearing, live witnesses, cross-examination, wigs, gowns, all the trimmings. A full trial. Full trials are, however, expensive, time-consuming and often unnecessary. Quite apart from pre-trial settlement, many claims are judged summarily without a trial or even struck out.
However, Article 6 of the European Convention on Human Rights may affect the whole basis for the suitability of all "no-trial" disposals. It provides for the right to a fair and public hearing in the determination of a person's civil rights. In civil proceedings, striking out a claim has long been a discretionary sanction of the court. Restarting a struck-out claim may be expensive, even if it is possible to do so.
Under the Civil Procedure Rules (CPR), summary judgment without a full trial may be obtained by a claimant who satisfies the court with a witness statement that the defendant has no real prospect of defending the claim and there is no reason why the case should be disposed of at a trial. Oral evidence and cross-examination are normally impermissible. A party can thus be prevented from taking a case to trial if the court can take a speedy view on its merits.
Defendants as well as claimants can also obtain summary determination on some or all issues in a case, thereby resolving matters more quickly and without the costs of a full trial. Under the predecessor to the CPR, the Rules of the Supreme Court, access to summary judgment appeared to be harder, available only if a plaintiff's affidavit proved that there was no defence to its claim.
No trial disposals are, of course, effective, laudable and utterly necessary. But has a genesis of judicial concern emerged about their potential use? Re Swaptronics held that the fact that a party to a case had disobeyed an order of the court (and so was liable to be struck out) was not in itself a bar to being heard at trial. Justice Laddie, presiding, said: "Were the courts to refuse to allow those in contempt access to the court simply on the grounds that they are in contempt, they could well be acting in breach of Article 6."
This case was decided before the CPR and the Human Rights Act came into force. It may be that courts will follow the line of argument suggested by the Court of Appeal this year in Arrow Nominees v Blackledge, where Mr Lord Justice Ward held that the risk of a fair trial not being possible was not the only factor which the court had to consider when deciding on whether to strike out a claimant's case for procedural default. Factors such as the effect that the default was having on court time or depriving other litigants of redress before the courts should also be considered. But if the claimant's litigation misconduct or a defendant's apparent lack of defence can be cured by making an appropriate costs order, "no-trial" disposals such as strike-outs or summary judgment may be seen as preventing a litigant's access to a full trial, in breach of Article 6.
The compatibility of the principles of summary determination and Article 6 have yet to be tested, but in a culture of access to justice and rights to a fair trial, the courts now seem to paradoxically provide more access to no-trial disposals. It is perhaps more likely that the use and frequency of no-trial disposals by the court, rather than their existence, could now be at more risk of challenge than ever under Article 6.
If any judicial reticence in determining quite as many matters without trial emerged, it would be regrettable. A balance needs to be struck between both the philosophy of the CPR (which envisage less full trials and more cost-effective disposals) and an overgenerous judicial view on litigants' rights to ventilate arguments, which frankly should have long since been suffocated in the interest of justice, and everyone else, prior to trial.
Without such a balance, an undue protraction of litigation, allowed to continue at trial when it could have been determined equally well summarily, will make an unnecessary, unhappy and expensive exercise by litigants of their new human rights.
Ian Caplin is a solicitor advocate at Cadwalader Wickersham & Taft