Access to Justice, Legal Representation and the Rule of Law - Speech to Legal Research Foundation

Introduction

In a lecture given at Cambridge University on 16 November 2006, Lord Bingham of Cornhill, formerly senior Law Lord, spoke about the rule of law. Unlike many speeches on this topic, which tend to be bland and almost meaningless, this lecture was both detailed and illuminating. Lord Bingham emphasised that the core of the principle of the rule of law is that "all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts."[1]

Having referred to the core of the existing principle of the rule of law, Lord Bingham said that the scope of the existing principle cannot be adequately understood without examining its implications. His Lordship analysed the rule of law in eight sub-rules, a style reminiscent of Dicey and Morris' Conflict of Laws. I have given a number of speeches this year on several of the various sub-rules: 

• First, the law must be accessible and so far as possible intelligible, clear and predictable;  
• Secondly, questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion; 
• The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation; 
• Fourth, the law must afford adequate protection of fundamental human rights; 
• The fifth subrule is that means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to solve; 
• Sub-rule six is that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers; 
• The seventh sub-rule states that adjudicative procedures provided by the state should be fair; 
• The last sub-rule is that the existing principle of the rule of law requires compliance by the state with its obligations in international law, the law which, whether deriving from treaty or international custom and practice, governs the conduct of nations. 

I last spoke at a Legal Research Foundation event on 28 May. In that speech I invented a ninth sub-rule, which was the importance of respect for the judicial system. This includes respect for judges and the law of contempt. In another speech in May this year - this time at the Victoria University law faculty - I examined Lord Bingham's fifth sub-rule.  

As I have said, the fifth sub-rule is that means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve. Lord Bingham said:[2] 

This is not a rule directed against arbitration and more informal means of dispute resolution, all of which, properly resorted to and fairly conducted, have a supremely important contribution to make to the rule of law. Nor is it a rule requiring every claim or defence, however spurious and lacking in merit, to be guaranteed full access to the process of the law. What it does is to recognise the right of unimpeded access to a court as a basic right, protected by our own domestic law, and in my view comprised within the principle of the rule of law.

Access to Justice

In my speech to this foundation in May, I examined the practical implications of the sub-rule and focussed on delay in the justice system and the cost and expense of litigation. Today I am returning to the fifth sub-rule to address the dual questions: "what is access to justice?" and "how can we improve it?" As Lord Bingham said, these issues are comprised within the principle of the rule of law.

Access to justice is a fundamental legal value in a liberal democracy like New Zealand. So what does ‘access to justice' mean? Ross Cranston, former Solicitor-General of England and Wales from 1998 to 2001 and now Justice Cranston of the Queen's Bench Division, in his text ‘How Law Works' defines access to justice thus:[3]

[T]here is machinery enabling individuals and groups to vindicate rights recognised by the legal order; equality before the law, that cases are treated alike and in a wider sense, that differences in treatment in the substantive law do not violate notions of equal respect and are rationally justified...

The author continues:[4]

Because these values are a lever for legal and social reform their implications are not accepted uncritically. Nor should they be. Too often... ingredients of the rule of law like independence of the legal profession have been lazily invoked as a mask for restrictive practices or institutional arrangements which can no longer be justified. Moreover, lawyers too readily assume that their institutional ways are sacrosanct.

I agree that some of these values can often be uncritically accepted or assumed and that change is often very hard to achieve. That is what I had in mind when I spoke to the Bar Association's AGM in September. I said the quality of the bar needed to improve and I made a number of suggestions for reform, including improvements to pre-admission professional legal education and mandatory continuing legal education, at least for those in the early years of legal practice. Co-incidentally, not as a result of the speech, the New Zealand Law Society has announced restrictions on barristers practising without supervision in their first three years following admission to the Bar.[5] I won't dwell on this topic in my speech today other than to repeat what Sir Owen Dixon once said:[6]

[T]here is no more important contribution to the doing of justice than the elucidation of the facts and the ascertainment of what a case is really about, which is done before it comes to counsel's hands. Counsel, who brings his learning, ability, character and firmness of mind to the conduct of causes and maintains the very high tradition of honour and independence of English advocacy, in my opinion makes a greater contribution to justice than the judge himself.

Thus the profession is critical to ensuring access to quality justice. Another important ingredient in access to justice lies in publicly funded legal services which can put parties on a more equal footing. These legal services can take various forms, such as the provision of legal aid for those who are unable to pay lawyers and lawyers working for independent community law centres. As is well known, Dame Margaret Bazley is reviewing legal aid and has now published a discussion paper. She expects to report to the Minister of Justice in the near future.[7]

Another ingredient to access to justice is reforming the practice and procedure of the courts to ensure that disputes can be resolved in a just, speedy and inexpensive manner. No-one can complain about the work of the Rules Committee in recent years. It has been outstanding. That committee has recently re-written the High Court Rules to make them more readable and accessible while, at the same time, making a number of improvements to areas such as enforcement of judgments. The re-written rules came into force on 1 February 2009. Like rust, the Rules Committee never sleeps. It is currently engaged in a detailed study of the law of discovery. A consultation paper was recently published on this important topic. It is also revisiting the question of written briefs of evidence. The same committee has been responsible for some major changes to District Court practice which are designed to simplify procedure in that court.

Access to justice also depends upon the quality of trial judges. Sir Anthony Mason, former Chief Justice of Australia, said:[8]

The just and efficient operation of our system of justice depends primarily upon the quality of trial judges. Appellate courts can correct errors made by trial judges but only a small percentage of cases decided by trial courts is taken on appeal. The appellate courts would be submerged if that percentage were to increase significantly, as it might do if we appoint as trial judges lawyers of lesser quality."

Judicial Specialisation

From time to time there are debates in this country about whether access to justice would be improved if there was a specialisation in the judiciary. I have always thought the trial judge should be a generalist rather than a specialist but, in recent times, I have started to question that view.

The most recent contribution to this debate came from Tony Molloy QC in his paper entitled New Zealand: Cuckoos in the Nest in an Otherwise Promising Trust and Investment Jurisdiction.[9] He quotes Lord Hoffmann who, in a 1999 lecture to the Chancery Bar Association, referred to the ways in which a judge who, for lack of mastery of the relevant law, tends to seek shelter behind phrases like "it is a matter of impression", "doing the best I can", or "it is a matter of common sense".[10] His Lordship said:

[J]udges cause confusion when they say ‘that is a question of fact' without telling you what the question is. But unless you know the question, you will not be able to get the right answer. Once the question has been identified, the answer is usually relatively easy.

Tony Molloy argues that:

[B]ecause the courts do not deploy their judges rationally and sensibly, and because far too many barristers undertake cases in which they lack mastery of the relevant area of the law, cases are foredoomed to bogging down because the right question is not being considered, or even asked.

The official response is to avoid the problem by pretending that it lies elsewhere - in the Rules of Court says - and then fiddling with those to "make things better". As Sir Hugh Laddie said, of such diversionary tactics, "you don't turn a dog into a cat by calling it ‘kitty'."[11]

The specialisation debate is not confined to New Zealand. For example, the matter has been a topic of recent debate in Scotland. In 2007 the Lord Justice Clerk, Lord Gill, undertook a wide ranging review of the civil courts system in Scotland.[12] His remit was to review the provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods, having particular regard to a number of matters, including the specialisation of courts or procedures.

During the consultation period of the review, practitioners and court users were found to be strongly in favour of a greater degree of specialisation in the courts, especially in commercial law, personal injury, consumer and housing cases. The review considered a number of submissions on this topic and recommended in its final report that a system be introduced where a number of sheriffs in each sheriffdom should be designated as specialists in particular areas of practice, including solemn crime, general civil, personal injury, family and commercial. Furthermore, it recommended the creation of a specialist personal injury court with jurisdiction throughout Scotland.

Before I move on, let me share with you another recommendation of the Scottish review. Alongside its recommendations about specialisation, the review recommended the setting up of an online register of cases where judgment has been outstanding for more than three months. In those cases, the report said, judges should be required to provide an explanation for the delay. [13] The wheels of justice are obviously moving too slowly for some Scots.

Some have argued that specialization can have powerful effects on judicial decisions through the immersion of judges in specific fields of legal policy and judicial expertise.[14] I think there is some truth in this. At the very least I think judges should be able to indicate their areas of interest and, where possible, cases should be given to them in their areas of interest.

There would seem to be nothing objectionable to special courts or special lists per se. They have been established in many jurisdictions for many purposes. They allow specialisation by judges, promote greater consistency and expertise of decision-making in particular areas, allow more authoritative decisions on certain questions of law and allow certain types of issues to be progressed with greater speed. Any decision to move in the direction of specialisation should, however, turn on a detailed consideration of the benefits and costs.[15]

There are those who doubt the benefits of specialisation. One major cost is equity. Specialisation means some litigants may gain over other litigants.[16] Some writers have suggested such negative effects as stereotyping, where a judge hearing a succession of similar cases ascribes the attributes of past cases to current cases,[17] or that specialisation may change the relative success of the political and legal interests concerned with the subject matter of court decisions by enhancing the influence of certain interests.[18]

Others have contended that judges need variety and could become bored if they did the same sort of work. I cannot take that proposition seriously; who could honestly contend that litigants exist to be entertainment fodder for judges?

Sir Hugh Laddie

I was interested in Tony Molloy's reference to Sir Hugh Laddie and I want to pay tribute to this great lawyer and judge who died last year. Twenty years ago I juniored to then Hugh Laddie QC in a case called Green v Broadcasting Corporation.[19] The case concerned copyright in the format of a talent quest programme called Opportunity Knocks, subsequently called Opportunity Flops by the Daily Mail. In that case their lordships dismissed Mr Green's appeal saying the dramatic work in question lacked sufficient certainty to be capable of performance.

Sir Hugh Laddie had an interesting career both at the bar and on the bench. He is most famously remembered, perhaps, as the inventor of the Anton Piller order.[20] He said some years later, however, that the order had become "a Frankenstein's monster that went far beyond his original design brief."

Justice Laddie was a great judge. He ranks with George Barton QC as one of the most impressive lawyers I have ever met. Not only was he a great barrister, he was also an outstanding writer and academic. His courtroom was well-run. One journalist's verdict was that the mills of justice turned exceedingly quickly in his court. One time a day had been set aside for one case which Laddie disposed of in an hour and 12 minutes. The journalist noted: "If Laddie had been around in Dickens' day, Jarndyce and Jarndyce would have been over by lunchtime and Bleak House would have been a novella."[21]

He was also very entertaining. Justice Laddie heard a case in which the pop band Blue was sued by a 1970s rock band of the same name. The original Blue wanted to prevent the new Blue from using the name, saying their own career and reputation was being damaged. So they sued the contemporary boy band and their label for up to £5m. As proceedings began at the High Court, Justice Laddie appeared surprised when the old band's barrister said their reputation was being threatened. "Are you seriously saying that fans of one group would mistake one for the other?" he asked? Counsel replied: "There is somewhat of a difference of appearance. One is aged like you and me, the other is a boy band. My clients were a boy band in the 1970s." Justice Laddie replied: "Oh no. Boy band is a style of music that is a bit more recent than the Charleston".

Sir Hugh caused a sensation in legal circles in 2005 when he resigned after ten years as a judge saying the job was "unstimulating". He blamed a lack of stimulation, the isolation of the job and the strain of having to try Chancery cases beyond his expertise. He said it was "challenging - like high-wire walking - but I didn't think it was fair for clients to be learning at their expense."

All this made me think that if someone like Sir Hugh could be lost to the bench due to his fear he lacked experience in some areas, then we have to ask ourselves "what about others?" I think it is time to consider the issue.

Conclusion

In this speech I have endeavoured to show that access to justice is a fundamental ingredient of the rule of law and then focus on one particular aspect of access to justice which is the fundamental contribution made by the judiciary and the trial judge in particular. The current institutional arrangements for the judiciary are not set in stone any more than institutional arrangements for the profession are immutable. That is why I believe it would be in the interests of justice in this country if we had a principled debate about specialisation of judges. Sufficient numbers of people have raised the matter in recent years for it to be a worthy topic of discussion.

[1] Lord Bingham, ‘The Rule of Law', (2007) 66 CLJ, 67-69.

[2] Ibid., p. 77.

[3] Ross Cranston, How Law Works, Oxford University Press, Oxford, 2006, p. 309.

[4] Ibid.

[5] The full speech I presented to the Bar Association is available at http://www.beehive.govt.nz/speech/counsel039s+duty+cooperate+-+achieving+efficiency+and+fairness+litigation

[6] Sir Owen Dixon, "Upon Taking the Oath of Office as Chief Justice" in Jesting Pilate, 1965, p. 247

[7] Legal Aid Review, Improving the Legal Aid System: A public discussion paper, (September 2009), Ministry of Justice, Wellington.

[8] Anthony Mason, The Mason Papers, Geoffrey Lindell (ed)., Federation Press, Sydney, 2007, p. 50.

[9] Tony Molloy, "New Zealand: Cuckoos in the Nest in an Otherwise Promising Trust and Investment Jurisdiction", (November 2009) 201 Offshore Investment.

[10] Lord Hoffmann, Common Sense and Causing Loss: Lecture to the Chancery Bar Association, 15 June 1999, www.chba.org.uk/library/?a=49940

[11] Louis Blom-Cooper & Robin Jacob, "Obituary: Sir Hugh Laddie", The Guardian, 2 December 2008.

[12] Report of the Scottish Civil Courts Review, Scottish Civil Courts Review, September 2009.

[13] Ibid., Volume 2, p. 7.

[14] Lawrence Baum, "Probing the Effects of Judicial Specialization", (2009) 58 Duke Law Journal, 1667-1684, 1667.

[15] Cranston, p.103.

[16] Ibid.

[17] Baum, 1678.

[18] Ibid.

[19] [1988] 2 NZLR 490 (CA); [1989] 2 All ER 1046; [1989] 3 NZLR 18 (PC);

[20] Now named the ‘search order'. See Part 33 of the High Court Rules.

[21] Daily Telegraph, 3 December 2008, "Professor Sir Hugh Laddie", http://www.telegraph.co.uk/news/obituaries/3546410/Professor-Sir-Hugh-Laddie.html