High price of cheap justice

Cost pressures are prompting judges to tie up cases on the facts, leading to ’tea party justice’

Jan Mugerwa
Jan Mugerwa

The recent announcement by the Court of Appeal concerning a scheme under which permission to appeal will be granted only if the parties first attend mediation got me thinking.

We’ve all been there: you know you should win a case and then not only do you lose, but you cannot appeal because the judge has tied it all up on the facts.

‘Tea party justice’ is the phrase coined by a leading QC to describe what happens when a judge is more concerned with the appearance of justice than justice itself. And so you have the pedantic insistence on ­protocol, judicial politeness and the appearance of fairness.

Yet beneath appearances lurks something more concerning. Imagine you are to have tea at the Ritz. In front of you is the beautifully laid out china, but then you are served cold, stewed tea with yesterday’s sandwiches. That is what it feels like to be tied up on the facts.

So how has this come about? We all know we cannot avoid the occasional bad judge, even in the best system, but what is more worrying is that the pressure on the system to save costs has resulted in a seismic shift away from access to the courts. This in turn is creating a cultural shift in our judges’ approach, which is something that concerns us all.

Despite the Woolf reforms, costs continue to escalate and the courts are under-resourced. Judges can experience huge pressure to get cases out of the system – a laudable aim until you remember how things used to be.

Believe it or not, a party used to be able to appeal as of right, but that ended some time ago.

Removing this right may have made sense, but it set us on a slippery slope. Judges are now instructed and trained to focus on making their judgments appeal-proof by tying them up on the facts.

Have things gone too far? Jurists have long recognised that a balance needs to be struck between access to, and the cost of, justice. Get this balance wrong and justice will suffer.

Each lawyer (and judge) has a duty to ensure that justice is done within their sphere and it is questionable whether that is happening, given the current fixation on cost-efficiency.

Overall, the approach of tying up cases on the facts has a number of significant effects. First, today’s judgments are turgid – less about the law and judgment, they look more like one side’s skeleton argument. Second, this emphasis makes them a poor source of the law for this and ­future generations. Third, many people come away feeling they have been stitched up and justice has been ­denied them.

It would seem – and I say this with apologies to the many judges whose judgments are exemplary – that the system is out of balance. The pendulum has swung too far one way.

There is a subtle yet important ­distinction between producing a judgment and applying judgment. Judges would do well to think about this because the approach they take will have far-reaching consequences. I know that other lawyers as well as clients are questioning whether the price we are paying for the current dogma is too high.