At a recent conference, separate panels of English and German lawyers solved a case study. The audience was impressed by the English solicitors' Anton Piller order and broad discovery – until it emerged that it would cost ten times more to bring the case to trial here than in Germany.
As Lord Woolf prepares for another review of access to civil justice, this tale highlights his dilemma. We have the finest tool for resolving disputes, but at breathtaking cost.
Should English courts offer "rough and ready" justice to bring the cost within the reach of the public? Unaffordable justice is no justice at all. Public confidence may evaporate unless something is done. And lawyers will be blamed.
Can costs be cut without sacrificing the best features of our system? Could courts dispense with the more onerous procedures if they are not needed? Lengthy oral argument would be contained. Discovery might be avoided. Laborious oral proof of every fact could become a thing of the past. Even cross-examination of witnesses need not be sacred. What if the court could dispose of cases on the documents where it was not persuaded a trial was needed.
Is this far-fetched? Most are possibilities under our present rules. But bias in favour of full adversarial trials rules them out. Perhaps it is time to think the unthinkable.
Nick Hancock is with Booth & Co in Leeds.