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The Liverpool Law Review Vol. XIX(1) [1997]
Introduction
Ian Campbell*
The principal object of having a special "Woolf"
edition of The Liverpool Law Review was to stimulate thought and discussion
in relation to the subject matter of Lord Woolf's report - whilst at
the same time acknowledging the immense stimulus that this report has itself
given to modern thinking on "Access to Justice". In turn the main
concern of this introduction is to give something of a historical and international
perspective to the 'symposium' of contributions which follow, and which
explore, each in their own way, other horizons.
In the Preface to the second edition of The Birth of the
English Common Law,(1) R.C. van Caenegem, considering an article by M. Clanchy
on the role of arbitration and amicable settlement in English medieval society(2),
comments(3) "Arbitration and amicable settlement negotiated with the
friendly help of neighbours and relatives are very old institutions, which
have outlived the Middle Ages. 'Love' functioned alongside 'law' and the
authoritative judgement-finding of the courts." Going on to deal specifically
with England in the twelfth century, Van Caenegem remarks(4): "The
success of the royal courts is undeniable, but was it because the 'plaintiffs
had no choice' or because they preferred royal justice over village palavers?
The fact that hundreds of people were prepared to pay substantial sums to
have their cases heard in the royal courts points to the latter direction
... Public opinion understood that the king's concern with legal matters
was no idle boast ... Nor was the royal justice of the early assizes completely
cut off from its popular base, for the jury was the vox populi, and it conserved
something of the spirit of village arbitration."(5)
Writing in An Historical Introduction to Private Law,(6)
Van Caenegem in turn observes(7) that the French Code of Civil Procedure
of 1806 (which was broadly derived from the Ordonnance Civile of
1667) was based upon the premise that disputes were "... between free
and responsible citizens in which no initiative or intervention on the part
of the administration or the judge was required." He noted that whereas
one of the most popular of the procedural innovations of the Revolution,
namely a conciliation procedure aimed at avoiding litigation pursuant to
which the " ... parties were brought together beforehand for what was
intended to be a constructive and reasonable discussion", had been
in principle retained, it no longer applied in practice.
A brief backward glance in time therefore reveals contrasting
philosophies. On the one hand formal adjudication may take the place of
informal settlement. On the other hand the issue arises as to the extent
of the obligation of the state in this field. Does the mere provision of
a court to try cases per se discharge the obligations deemed appropriate
to be discharged by the state? Should the court so provided by the state
itself ensure that litigation once commenced follows strict timetables,
or is it enough simply for the court to be available to parties minded to
litigate, as and when such parties determine that they wish so to do?
The view which prevails in modern times is clearly the
latter. Thus the 1981 Council of Europe Recommendation of the Committee
of Ministers to Member States on Measures Facilitating Access to Justice(8)
sets out in its preamble "... that the rights of access to justice
and to a fair hearing as guaranteed under Article 6 of the European Convention
on Human Rights, is an essential feature of any democratic society ..."
The Recommendation goes on to recognise the desirability of taking "...
all necessary measures in order to simplify the procedure in all appropriate
cases with a view to facilitating access to justice of the individual whilst
ensuring at the same time that justice is done." Member States are
invited by the Recommendation to take measures to achieve simplification
(including the encouragement of the amicable settlement of disputes and
conciliation; limiting the number of court experts); acceleration (including
the rapid completion of cases); ensuring that the cost of justice (such
as court fees and lawyers' and experts' fees) is not an obstacle to access
to justice; and to provide special procedures to enable a party to put their
case before the court without incurring expense out of proportion to the
amount at issue.
It would seem that in the not too distant future the Council
of Europe's European Convention on Human Rights will be incorporated into
the domestic law of the United Kingdom. In these circumstances the work
of the Council of Europe in the field of civil justice may take on an added
significance. Thus the 1984 Council of Europe Ministers' Recommendation
"On the Principles of Civil Procedure Designed to Improve the Functioning
of Justice"(9) likewise deals inter alia with limiting the number of
hearings and speeding up cases, having noted in its preamble that "...
some rules of civil procedure used in member states may prove an obstacle
in obtaining effective justice because ... they may sometimes be abused
or be manipulated to cause delay." Principle 3 goes on to provide inter
alia: "The court should, at least during the preliminary hearing but
if possible throughout the proceedings, play an active role in ensuring
the rapid progress of the proceedings, while respecting the rights of the
parties, including the right to equal treatment."
Finally, it is not without interest to recall that at
a multilateral Council of Europe conference on "The administration
of justice and court management" held in 1995(10), the participants
expressed the view that it was "... the duty of state institutions
to provide the judicial system with sufficient resources to carry out its
task ... The concept of sufficient resources must, of course, take account
of technical advances which are likely to entail significant improvements
in the services offered by the judiciary to the public ... [T]he management
of the judicial system, involving the use of all the human and financial
resources allocated, required a proficiency in management techniques. It
is therefore necessary, whatever the share of management responsibilities
devolving on them, that judges themselves and court officials should receive
training in management techniques in order to become competent managers.
This demand for professionalism entails an absolute need for training."
Matters analogous to those reported on by Lord Woolf have
been reviewed in France by Jean-Marie Coulon, Président du Tribunal
de Grande Instance of Paris, in his report Réflexions et Propositions
sur la Procédure Civile to the French Minister of Justice, le
Garde des Sceaux, in December 1996.
At first sight the impression to be derived from that
report, and from reading contributions in this issue of The Liverpool
Law Review from as far away as Germany and Japan (whose civil law system
in fact owes much to German influence), is that the world is indeed a "global
village". Once again with a view to seeing the whole in perspective
it is perhaps salutary to note what is understood (from anecdotal, internet
or similar sources) to be the prevailing situation in Haiti, where judges/magistrats
are currently being sought to serve as mentors to judges in the regional
court centres throughout Haiti. Responsibilities include mentoring current
or newly appointed judges in judging skills (not substantive Haitian law)
including the basic concepts of the independence of the judiciary, judicial
ethics, critical thinking and decision-making, human rights, courtroom conduct,
and the fact-finding process. It is understood that the French Ministry
of Justice is involved in this project. There are, it is believed, indications
that a significant number of Haitians at present at least may retain a preference
for having their disputes resolved by practitioners of voodoo rites. In
so far as the local justices have law books, French codes from the 1960's
apparently predominate.
If law and love were the great themes of the Middle Ages,
perhaps the following pages demonstrate that "availability of resources"
prevails over all else in our time.
* A circuit judge sitting at Liverpool; Honorary Visiting
Professor in the Faculty of Law of the University of Liverpool.
1 Cambridge: Cambridge University Press, 1988.
2 M. Clanchy, "Law and Love in the Middle Ages",
in J. Bossy, ed., Disputes and Settlements. Law and Human Relations in
the West (Cambridge: Cambridge University Press, 1983), 47-67.
3 Supra n.1, at p. xi of the 1994 reprint.
4 Ibid., at xi-xii.
5 Van Caenegem cites at p.xv n.30 the remark made to him
by letter by J.R. Strayer: "I find it difficult to draw a sharp line
between arbitrators drawn for their knowledge of the facts, and the informed
neighbourhood juries of early 12 c. England." See too (also cited
by van Caenegem), E. Powell, "Arbitration and the Law in England in
the late Middle Ages", Transactions of the Royal Historical Society
5th Series 33 (1983), 49-68.
6 English edition translated by D.E.L. Johnston (Cambridge:
Cambridge University Press, 1992). Originally published in French as Introduction
historique au droit privé (Paris: Editions Story-Scientia, 1988).
7 At 10-11 of the reprinted 1996 edition.
8 Recommendation No. R (81)7, adopted by the Committee
of Ministers on 14 May 1981 at its 68th Session.
9 Recommendation No. R (84)5 of the Committee of Ministers
to Member States, adopted by the Committee of Ministers on 28 February 1984
at the 367th meeting of the Ministers' Deputies.
10 Bordeaux, 28-30 June, 1995.
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