The legal profession’s objections to judges having access to neutral assistance from a third party when facing specialist commercial or scientific matters in court need to be overcome, the Lord Chief Justice has said.
Speaking about ways in which commercial law should be kept up-to-date, Lord Thomas also said the judiciary was “revisiting the rather neglected use of judges as arbitrators”.
In a wide-ranging address – which also included concerns about changes to legal education – Lord Thomas noted that assessors have been used in the Admiralty jurisdiction for a very, very long time, and both Lord Woolf and, to some extent, the Civil Justice Council have also encouraged their use.
Giving the Jill Poole Memorial Lecture at Aston University in March – the text of which has only just been published – Lord Thomas said that with commercial practice and the financial markets constantly developing, “the presence of an assessor – or two assessors – to clarify issues, to educate, and enable judges to get to grips with expert evidence, will be all the more of a benefit than it was understood to be in the past”.
He continued: “There are two answers to the question as to the failure to take up the use of assessors.
“First, we live in a system conditioned by an adversarial system and, therefore, we are used to adversarial work; it is very difficult to make any inroads into that culture.
“Second, the use of an assessor is perceived as somehow enabling the judge to take greater control over the evidence that comes before the court, and therefore the parties having less.”
But court processes were less adversarial today, Lord Thomas said, while single joint experts were now an established feature of civil process.
“The time surely has therefore come when we ought either to look at using assessors in certain types of cases or to progress an alternative which produces a similar result – that is providing some neutral input to the judge in cases where he needs the commercial or scientific background.
“I make the second suggestion because the conservatism and culture of the legal profession has so far successfully defeated the first.” He highlighted the “intense tuition to judges of the new financial list” as an example of it.
“Given the ever-increasing rapidity of change in science and commercial practice, we can no longer afford to think of reasons for objecting to the provision of neutral assistance to a judge by those at the forefront of our changing commercial and scientific worlds.
“If we fail to change and remain mired in the culture of the past, then the development of our law in keeping up with such change is put seriously at risk.”
The power to appoint judges as arbitrators dates back to the 1950s, when there was concern that the Commercial Court was dying.
Lord Thomas said: “We are now encouraging this under-used power for judges to be appointed as arbitrators; thus exposing them to a further range of disputes and practices. Helping to both build on their expertise, but also provide a means through which there can be greater cross-fertilisation of practices, exposure to different ways of working can itself also be a source of innovation.”
At present, only Commercial Court and TCC judges can be appointed as judge-arbitrators, and the scrapped Prison and Courts Bill had included a clause to widen this to all High Court judges.
“I very much hope that over a period of time, commercial parties will respond to the encouragement to seek to have judges appointed as arbitrators.”
Lord Thomas added: “We can also learn something from private judging – the practice developed in the United States from the late 1980s – through which the court at the request of the parties appoint retired judges to determine their disputes through a form of flexible court procedure with hearings suiting the convenience of the parties.”