Let me start with a very judge-centric issue: that of integrity and its less-often mentioned bed-fellow, corruption. Our legal system is widely acknowledged to be long on integrity and short on corruption.
This perception of integrity goes further than just allowing our judges to be reasonably well thought of overseas, it extends to our legal system, civil and criminal, the civil servants that run it, and to the independence of the judiciary - i.e. the lack of political influence on their decisions.
So how does this help? It means that businesses and individuals in many parts of the world would be pleased to have their legal disputes resolved by UK courts.
Moreover, generally, we can say that English law is appreciated by overseas businessmen because it is long on predictability, well enunciated in the numerous precedents upon which we rely for guidance, and short on broad untrammelled discretions.
Four of the top 8 global law firms (by gross fees in 2009-10) are UK firms. Two further firms in the top 8 have their largest presence in the UK or started in the UK (Baker &Mackenzie, and DLA Piper), meaning that 6 of the top 8 global law firms have close connections with the UK.
My thesis is that the UK legal profession drives exports of UK professional services generally, and is a huge invisible asset. If this is right, can we not do much more to promote what the UK excels at - namely professional services? It is time to start to work out how we can make the best of some of the things that the world really respects about us. One of those things is undoubtedly our legal system. But it is not confined to the law. Other UK professionals are also highly respected internationally.
I have always been a dedicated supporter of the Woolf reforms, which confronted the archaic civil legal system head-on. But I have never thought they went far enough. Had they gone further at the time in 1999, they would probably not have been accepted by the then legal community. But now there is much more to be done. I would like to see a Woolf II reform to keep our civil legal system out in front. There are four things in particular that I believe judges could carry out by way of continuous improvement to our system, which are as follows.
First I would suggest a major procedural overhaul of court documents including pleadings, witness statements, and experts’ reports. Many of these documents have been allowed to become so lengthy that they are never read. Lists of issues can, and should, be used instead. The approach to this problem has, in my view, never been radical enough. The Commercial Court’s long trials working party made a series of very sensible changes, but we need to look at the system as a whole. Big cases at all levels (and, by the way, in arbitrations as well) are plagued by lengthy court documents that fail to focus on the key points.
One of the ways of doing this is to take advantage of the old distinction between what you put on the Claim Form and the pleadings which follow. If you initiated any case, however complex, with a short summary of the claim, the court could then direct further more lengthy elucidation in the cases where it is necessary, and where a simple list of issues would not suffice.
I despair of the number of cases I see in which counsel has drafted bundles of lengthy detailed pleadings which, when the matter comes up for determination, nobody ever reads or considers at all.
Secondly, I would take more steps to reduce the length of court hearings and particularly trials, by the use of mandatory trial timetables vetted by the court. Many advocates have made great strides in confining their oral submissions, but there is still scope for limiting cross examination and speeches in advance. When I was at the Bar, I always agreed a trial timetable with the other side. When you take the trouble to do that, there are very few occasions when cross-examinations go beyond the estimate.
Thirdly, I think there is a strong case for the introduction of a universal docket system in all the Rolls jurisdictions. That would facilitate more active, consistent and hands on case management, thereby reducing the time taken from issue of proceedings to judgment, whether that takes place after a summary hearing or a trial.
Fourthly, I continue to advocate the more efficient and extensive use of IT, and of electronic issue and handling processes. At the moment, IT is used as an add-on to the paper based systems. The effect is that everything is duplicated.
I always ask counsel for all the main documents in the case by email. I rarely get them - sometimes it is hard enough to obtain the skeletons in soft form. I always use a computer in court, but many judges do not. We should work towards that being the norm. It makes judgment writing twice as fast. The electronic filing of court documents should, on any basis, become the norm. How absurd is it for solicitors to prepare all their documents on a computer system, print them out, file them at court, and then only send them by email when specifically asked?
An example of where we can be rather short-sighted concerns professional training. Our universities have, for many years, attracted a disproportionately high number of foreign students, who go on to study for our top professions, and then carry the English language, English law and English notions of justice overseas. They promote our professional services in all they do in their many countries of origin. We should, I think, encourage genuine foreign students coming to the UK.
I recall vividly, when I was Chairman of the Bar, I was interviewed by John Humphries on the Today programme. I was saying that the vast majority of lawyers were valued and valuable public servants, who should be regarded in the same category as doctors, nurses and teachers. Humphries laughed out loud. But the point is not so stupid. The vast majority of criminal, family and administrative lawyers offer the public a vital service for relatively modest (in some cases, extremely modest) remuneration. The commercial lawyers are supporting UK plc in the way that I have described. The antipathy to lawyers shown by the popular press, many politicians and by the public is logically unjustifiable.
My own view is that now, as much as when I was at the Bar, a great deal of effort needs to be put into improving the image of the UK’s professions. This is not merely cosmetic. If the professionals themselves better understood how important they were to the success of UK plc, and how their public image at home was hindering that objective, they would be able to tackle the factors that are responsible for their tarnished reputation.
As for the criticism that judges should not be involved in enhancing UK plc, I reject this absolutely. My call is that we should take more seriously what we value most. We should cherish our legal system and improve it, not just so that we can sell it overseas, but so that it provides the highest quality of, and access to, justice for our own citizens in all walks of life and in all fields. We should not assume that what was historically a ground-breaking legal system will remain so, unless the judges and lawyers remain dedicated to its continuous improvement, and ensuring that it provides what is required by the domestic and international community that it serves.
It is the judges’ responsibility to ensure that our legal system is fit-for-purpose, otherwise none of what I have been proposing can possibly be brought to fruition. The judges have significant influence on the regulation of both lawyers and other professionals. They can do much to make and keep the legal system the envy of the world.
This article is based on the KPMG lecture given on 18 October 2011 on “The Role of UK Judges in the Success of UK PLC”.
Mr Justice Geoffrey Vos