A legal system fit for the 21st century

Sir Gavin Lightman shares his wide-ranging vision of a reformed and rejuvenated system of justice for the next millennium

I have been concerned since I began in practice that there is a public perception of the legal profession – and in particular litigators – as a self-serving clique exploiting for its own profit the public's need for legal services.

The public's sense of alienation is deep and all pervasive. An example of the reaction to the unacceptable costs and delays is the increasing choice by international businesses of Swiss, Swedish and German as the proper law of contracts in place of English law, despite the high regard for the quality of English law and the English judiciary and legal profession.

Some advances have recently been made, such as the Woolf reforms.

But in order to advance further, it is necessary to identify the core values which should underlie the legal system of the 21st century. I suggest four – expertise, equality, expedition and economy.

The meaning of expertise is clear: all litigators, whether prospective silks or judges, must be properly educated and trained to meet the ever-increasing demands of an ever-more complicated legal system.

Equality means two things. First it means equality of opportunity. All obstacles, whether real or reasonably perceived by outsiders as obstacles, must be removed.

Second, it means equality of access to the courts. The rich and powerful should not have any undue advantage in court proceedings.

Expedition means that trials and appeals should be heard expeditiously. It is difficult for anyone who has not faced litigation to appreciate the cloud of anxiety and uncertainty which pending litigation can cast over the lives of the parties to the litigation (and their families) as long as it lasts.

Economy means that access to court must be affordable: that the restrictive practices and obsolete rules which presently encumber the legal process should be abolished.

The Woolf Report and its proposals represent a sustained effort to promote expedition and economy, by simplifying and accelerating court procedures and encouraging mediation. however, I do not think that these goals can be successfully promoted – or even achieved – without expertise and equality being promoted at the same time.

Here I present my vision of what the legal system could be like at the end of the first quarter of the 21st century.

Litigants with a reasonable claim or defence are able to contemplate the prospect of litigation with a degree of equanimity: recourse to law is their right within their means and a manageable enterprise.

I see a truly diverse Bench and Bar drawn from – and representing – all sections of society. The earnings of all barristers are made public, and no one has reason to feel ashamed. Service of the writ, pleadings and all other court documents is effected by electronic means.

All pleadings are short, and the oral and documentary evidence is to the point. This has been achieved by the adoption of rules to the effect that, on taxation, the quality (and not the quantity) of a pleading is rewarded, and no costs are allowed in respect of the trial unless it is specifically advised that they will be incurred in a fully reasoned written opinion on evidence.

All interlocutory hearings are by conference telephone or conference videophone calls. A new mandatory first stage is interposed in all proceedings – the dispute is referred to a specialised judge to give a preliminary view whether the action will succeed and, if the outcome is uncertain, the terms for settlement. This operates as a filter system, drastically reducing the number of cases that proceed to trial.

The trial procedure is abridged; the hearing is limited to the briefest of opening and closing speeches and the examination of witnesses.

Costs follow reason rather than the event – who acted more reasonably in an effort to achieve a just and economic resolution of the dispute.

Wigs and gowns are gone: judges sit in lounge suits distinguished only by their choice of ties. The whole of the law is codified: citation of authority is practically obsolete, for the view is taken that if a proposition of law is just and reasonable, that is sufficient to command its acceptance.

Appeals are discouraged and only allowed if leave is given. When a judge gets it wrong, the wasted costs are paid out of public funds. The Supreme Court (sitting at what is now the Public Record Office) has replaced the House of Lords; it is rarely troublesome, rarely troubled.

The press is understanding of the pressures on judges in their judicial and extra-judicial duties and their occasional shortcomings. It no longer regards every judgment against a newspaper as an attack on the freedom of the press.

This is an extract from Mr Justice Lightman's address to the Chancery Bar Association spring lecture.

See letters, page 18.