Tuesday, February 23, 2010

The consequences of the adversarial process

I have just read the judgment of Lord Justice Munby in H v H. I do not propose to comment upon the body of the judgment (I'm not sure, in any event, that it tells us much that is new), but rather upon Lord Justice Munby's preliminary observations.

It is, I think, all too common that the work done in preparing and presenting an ancillary relief case is out of all proportion to what is actually required, with both parties and their legal teams expending huge resources on detail of little or no relevance, rather than concentrating upon the (often very few) real issues. Such, it seems, was the case here:

"the reality is that this is and always was a comparatively simple case which has become extended in its scope and protracted in its length almost beyond reason by the forensic enthusiasm with which it has been pursued on both sides."

As a result, the bundles extended to 15 lever arch files, and the trial lasted for 15 days (I dread to think what the costs come to), and Lord Justice Munby commented:

"The skill with which, on both sides, all this effort was deployed was first class; whether the endeavour was really necessary is, perhaps, another matter. But in venturing this observation I emphasise how acutely I am conscious not merely of the priceless advantage of hindsight but also of the forensic experience that the inner realities of a case are often much more apparent to the judge who watches the battle played out before him than to those engaged in the fray – this, after all, is one of the consequences, as also one of the advantages, of the adversarial process."

All of which makes me idly wonder: would we be better served by an inquisitorial process? I have to confess that I have never witnessed an inquisitorial system in action, and nor can I fully envisage how it might work, but if it could help both parties to concentrate their minds upon the issues that are truly relevant, then that would obviously be to the great benefit not just of those involved but also of all others who seek to utilise precious court time.

1 comment:

  1. Great excerpts John. There is a real tension in client representation though. We are urged, quite rightly, to keep costs proportionate. That is easily done.

    It is just as easy, and in many cases, valid, to adopt that old favourite "The broad brush approach."

    The client is entitled to expect however that no stone shall be left unturned.

    When we as lawyers point out that a particular complaint or concern isn't necessarily the issue that concerns us within a case, we can stand accused of not caring or not taking the matter seriously.

    That is combined with the constant threat against our indemnity insurance of course.

    The inquisitorial idea would make sense. If we look to narrative theory and methodolgy then an inquisitorial case would seek to unearth one jointly constructed story.

    The adversarial system inevitably pits two conflicting stories against each other and never the twain shall meet, not even after judgment has been handed down at massive cost.

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