Lessons from eBay, cases without hearings and a divided profession: Neuberger assesses the law

Neuberger: more radical solutions may be required

The court system “may well have something to learn from online dispute resolution on eBay and elsewhere”, the president of the Supreme Court has suggested.

Lord Neuberger also saw a future where oral hearings in smaller cases are dispensed with so as to keep a lid on costs, and separately warned of a divide opening up in the legal profession between commercial lawyers and those operating under legal aid.

Giving a wide-ranging speech in London on ‘judges and policy’ to the Institute of Government, Lord Neuberger acknowledged that “legal advice and legal proceedings are beyond the means of most people” – because legal services are expensive, court procedures “are not always proportionate” and money for legal aid is scarce.

The duty to face up to these problems does not just lie with the government, he said, and the judiciary and legal profession also had to help ensure access to justice.

“We judges have to look at our procedures, and make them more efficient and proportionate in all fields, and this includes more judicial control before and during hearings, including criminal trials,” Lord Neuberger said.

“In civil and family justice, the Jackson and Norgrove reforms are both aimed at cutting cost and delay and will hopefully improve things. But more radical solutions may be required – such as dispensing with disclosure of documents and cross-examination, even with an oral hearing, in smaller cases: better to have a judge’s summary decision quickly at proportionate cost, than a disproportionately delayed decision at exorbitant cost, or no decision because it is too expensive to get to court.”

He added: “We may well have something to learn from on-line dispute resolution on e-Bay and elsewhere.”

Lord Neuberger has floated the possibility of curtailing disclosure and cross-examination before, while his reference to online dispute resolution on eBay reflects similar comments made by well-known legal futurist Professor Richard Susskind – at whose most recent book launch Lord Neuberger spoke.

However, the judge also used his speech to issue specific warnings to the government on legal aid reform: “It is a mistake to have a new legal aid regime with a costs structure which will drive out the best lawyers. Good lawyers save money, because they are less likely (i) to waste time in and out of court, (ii) to be responsible for miscarriages of justice, and (iii) to engender appeals and retrials.

“It is also a mistake to structure legal aid costs so as to reward lawyers for doing long trials: it inevitably means that trials last longer and cost more, and lawyers should be rewarded for cases lasting less time, not more.”

He added that the Ministry of Justice had to appreciate that any changes which are made to reduce legal aid and cut the cost of litigation are “likely to have a knock-on effect on the cost of the courts. Less legal aid means more unrepresented litigants and worse lawyers, which will lead to longer hearings and more judge-time. More judicial control of cases will mean more judge-time out of court to understand the details of each case in advance”.

He also hinted that the best lawyers could be deterred from joining the bench because of the level of pay. “As the gap between the earnings of successful lawyers and the judicial pay increases, maintaining high standards may prove hard,” he said.

He touched on diversity in the judiciary and the legal profession, where he said more work was required.

Lord Neuberger said: “While it is a bit of an over-simplification, there are currently two legal professions. I am not referring to barristers and solicitors, but to lawyers who serve rich individuals and companies, and lawyers who serve ordinary citizens. Both are vital to this country, but in very different ways.

“In a capitalist world, a country needs first-class lawyers to advise and act for businesses. Our commercial lawyers do this and more, in that they have made London probably the commercial legal, and dispute resolution, centre of the world, greatly supporting the UK economy.

“The other lawyers are vital to the rule of law: without competent legal advice and representation, legal rights would be worthless. The former group of lawyers are doing fine, the latter are under intense pressure from legal aid cuts and, at least in some areas, from an overmanned profession.”


30 March 2021

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