“The law reports are replete with examples of important judicial law-making in diverse areas affecting many aspects of our national life.”
So said the Master of the Rolls, Lord Dyson in a recent speech. But for how much longer can this continue?

King Henry II (1133 – 1189): his legal reforms laid the basis for the English Common Law

The “living instrument” of the common law, which has been in continuous development since the reign of Henry II, is now under threat from a number of recent developments. These include the parliamentary mistrust of the judiciary and jealousy of its independence; the more widespread fear and loathing of European and human rights law-making (much of it supposedly conjured up by “unelected judges”); and media misreporting of crime and family law decisions.

But there is also a rather more insidious enemy to the judges’ ability to make new law: the declining role of adversarial argument in the resolution of disputes. Two recent speeches by very senior judges have suggested a deliberate move towards a more inquisitorial process; and a number of other recent developments have eroded the scope for deciding cases on a fully argued and fully informed basis, so as to create binding precedents in accordance with the principle of “stare decisis”.

Judge-made law: the ever evolving common law

Lord Dyson MR’s words, quote above, came in a speech entitled Are the judges too powerful? He was addressing Jeremy Bentham’s view that judges should not be permitted to legislate, and that of some present day critics who feel there “may be an excess of judicial lawmaking.”

Although there have been occasions when judges have feared to overstep the line between incremental extensions of existing rules and the formulation of wholly new ones, or been criticised for doing so, the fact remains that the common law has developed for centuries on the basis of principles introduced and amended by the judges. As Lord Nicholls of Birkenhead observed in In re Spectrum Plus Ltd [2005] 2 AC 680, para 32:

“In common law countries much of the basic law is still the common law. The common law is judge-made law. For centuries judges have been charged with the responsibility of keeping this law abreast of current social conditions and expectations. That is still the position. Continuing but limited development of the common law in this fashion is an integral part of the constitutional function of the judiciary. Had the judges not discharged this responsibility the common law would be the same now as it was in the reign of King Henry II.”

And as Lord Goff of Chieveley said in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, 377:

“the common law is a living system of law, reacting to new events and new ideas, and so capable of providing the citizens of this country with a system of practical justice relevant to the times in which they live.”

Lord Dyson in his speech noted that “the development of the common law is often said to be incremental. But some of the increments have been bold and of major significance.” He cited examples including Hedley Byrne Co Ltd v Heller & Partners Ltd [1964] AC 465 (a far reaching extension of the law of negligence) and the change in the law on marital rape in R v R (Rape: Marital Exemption) [1992] 1 AC 599, 616 where Lord Keith of Kinkel said the “The common law is… capable of evolving in the light of changing social, economic and cultural developments.”

The power of judges to change the law is, of course, subject to Parliament, which can change the common law if it wishes to do so. However, it is often the reluctance of Parliament to change the law, or the lack of political call for change, that justifies the judge stepping in to change it themselves. (The change in the law on marital rape was a good example of that. Parliament could have changed the law but had not done so; it was left to what one critic called the “whim of the court” to achieve the long-awaited and obviously needed change.)

The doctrine of precedent and the role of law reports

As is implicit in Lord Nicholls’s observation, the development of the common law has been going on since the reign of Henry II. Although the notion of precedent initially had more to do with procedural form than juridical substance, the concept of “stare decisis”, or the application of settled principles to new situations, is of very long standing.

Explaining it in a nutshell in the latest edition of their magisterial survey, The English Legal System, 14th ed (2013-2014), Slapper and Kelly say:

“The doctrine [of binding precedent] refers to the fact that, within the hierarchical structure of the English courts, a decision of a higher court will be binding on a court lower than it in that hierarchy. In general terms, this means that when judges try cases, they will check to see if a similar situation has come before a court previously. If the precedent was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should follow the rule of law established in the earlier case. Where the precedent is from a lower court in the hierarchy, the judge in the new case may not follow, but will certainly consider, it.”

Slapper and Kelly go on to observe that “the operation of binding precedent is reliant upon the existence of an extensive reporting service to provide access to previous judicial decisions.”

Though the availability of a reliable law reporting service has not been a constant feature of the history of the common law – indeed at times its lack has been the source of widespread complaint – the establishment of what is now the ICLR(the Incorporated Council of Law Reporting for England and Wales) in 1865 has ensured that the doctrine of stare decisis has been built on a reliable, accessible documentary basis.

Stare decisis and adversarial argument

The development of the common law on a case by case basis depends on another important factor: legal argument. Unless a case is fully argued on both sides, unless the case-law both for and against a proposition is aired before the court, the court is unlikely to be in an adequate, let alone ideal, position to determine what the law is or (if it decides to change it) should be.

Indeed, there is an expression used in the common law, “per incuriam”, to describe a decision by a court which (as determined by a later court) appears to have been reached on an incomplete appreciation of the existing law. Usually this means a relevant case has not been cited to the earlier court which, had it been, would have affected its decision.

The clearest way to know whether a case has been cited or not is to consult the law report. The more important and relevant cases cited to a court will usually be referred to in its judgment; but they may not all merit such a mention, particularly where counsel cite many cases in support of a proposition which could easily rest on a single leading case. (Over-citation of authority is a routine judicial complaint, but barristers must satisfy their clients’ or instructing solicitors’ expectations, as well as those of the judges whom they are at risk of teaching to suck eggs.) That is one reason why ICLR’s standard law reports (such as The Weekly Law Reports) also list those additional cases cited in argument, or referred to in written skeleton arguments, but not mentioned in the judgment. This enables any later court to ascertain whether or not a critical case was cited to the earlier court, and if not, to consider confidently whether its decision was made “per incuriam”.

All the more so if (like those in the official series of The Law Reports published by ICLR) the report includes a note of the argument in the earlier case, since this will show not only whether a particular case was cited, but which point in submission it was cited to support.

Adversarial argument has the merit of encouraging the opposing sides to find and present opposing legal authorities. A decision is all the stronger for having been forged in the battle of ideas.

That is not to say that judges themselves may not bring their own erudition to the process: frequently, in the higher appellate courts, the interruptions from the bench take up almost as much time as the presentation of submissions, particularly where these have been supplied in writing in advance and read up by the judges.

Moreover, in a case where, for whatever reason, one or more parties or interests engaged by the case are not represented by counsel, and the case involves a point of law on which there appears to be doubt, the court may appoint an amicus curiae (friend of the court) to present legal submissions, not on behalf of that party or interest, but to ensure that the court is as fully informed as it can be of the existing state of the law, before embarking on what may be its development.

Erosion of the adversarial process

The recent decline in the role of adversarial argument in the resolution of disputes is not necessarily a bad thing. For those caught up in disputes, it may be a very good thing. Few litigants enjoy the public exposure of open court hearings. It may also result in a saving of public money and reduce the burden on scarce legal resources, particularly at a time of austerity. But one of the (probably unanticipated) consequences of the erosion of the adversarial process is that it hugely reduces the scope for the development of the common law.

A number of causes have contributed to this situation. They include the increased use of arbitration in commercial disputes, mediation in marital disputes, less formal procedures for small claims for damages, and ruthless case management and curbs on litigation funding for more substantial damages claims, all of which is tending to reduce the number of adversarial hearings. These changes have occurred for practical reasons, to save time and money, or to protect valuable public resources or price-sensitive private information.

But there has also been a philosophical change of approach signalled at the very highest judicial level. First the Lord Chief Justice, Lord Thomas of Cwmgiedd, in speech last month entitled Reshaping Justice, and now the President of the Family Division, Sir James Munby, in a speech entitled The Family Justice Reforms, given yesterday to mark the launch of the new Family Court, have both stated the view that hearings in the civil and family proceedings should adopt a more inquisitorial approach, particularly where one or more parties are not represented by lawyers.

As any first year law student knows, there is a fundamental historical division – an “us-and-them” divergence – between the mainly English-speaking common law system, based on adversarial hearings, in which it is for the claimant to prove their case to the required standard of proof; and the continental European civil law system, based on an inquisitorial approach, where it is for the presiding judge essentially to investigate and resolve the dispute between the parties.

Lord Thomas CJ said this:

“We have to keep an open mind even on radical options. For example, to some a change to a more inquisitorial procedure seems like the obvious or the only solution to the present situation we find ourselves in with the increase in litigants-in-person and the need to both secure a fair trial for all whilst doing so within limited and reducing resources that have to be distributed equitably amongst all those who need to resort to the courts. It might be said by them that to attach to it the label of “inquisitorial” was doing it a disservice, as it was really little more than the active interventionism characteristic of much pre-trial procedure, case and trial management. But I think it is right to refer to it as inquisitorial, because the essence of the change would be a much greater degree of inquiry by the judge into the evidence being brought forward.”

Sir James Munby P said:

“In the courtroom we must adapt our processes to the new world of those who, not through choice, have to act as litigants in person. We need to think anew about the appropriate roles in the court room of McKenzie friends and other lay advisers. We will need to make our judicial processes more inquisitorial. Do not misunderstand me: I am not advocating adoption of the continental inquisitorial system. Our system, and for good reason, is essentially adversarial, even in the Family Court. But it is a system very different from the adversarial system of yore. Then the judge functioned as little more than an umpire, adjudicating on whatever claim the litigant chose to bring, the only limitations being the need for some recognised cause of action and the requirement that the evidence had to be both relevant and admissible. Those days have long since gone. Modern case management imposes on the judge the responsibility of deciding what issues will be argued and what evidence will be permitted. The process before the judge may still be adversarial, but it is a dispute fought in accordance with an agenda set by the judge, not the parties. But that, of course, assumes that the parties are represented. Where they are not, then the judge must take a more active role. The hearing is more likely to produce the right and just result if the judge adopts a more inquisitorial approach.”

Both these speeches identify the need to move towards a more inquisitorial system as being caused, at least in party, by the increased tendency, or in most cases necessity (owing to stringent cuts in legal aid), for parties to represent themselves. That in turn has been caused by what Lord Thomas CJ called a “retrenchment of the state”. In other words, this is not just a temporary austerity measure.

Opponents of the cuts and of the consequential move towards a more inquisitorial procedure point out that it is not the adversarial nature of the proceedings that is the problem, it is the lack of professional lawyers, who are able to consider the issues dispassionately, diffuse tensions, suggest alternative remedies, and argue cases, if necessary to do so, in a calmer, more focussed way than an emotionally involved litigant in person, or someone only assisted by a McKenzie Friend. See, for example, Lorna Borthwick’s blog response, Why an inquisitorial system for family courts won’t work

Whether or not you agree, the fact remains that in more and more cases litigants are having to represent themselves, and this means that, whether we move towards a more inquisitorial process or continue to use an adversarial approach, there will be fewer and fewer cases sufficiently well argued on both sides to warrant treating the court’s decision as binding new law.

No doubt there will still be precedents. The courts will give judgments in which rules and principles are stated, guidelines given, and issues of law resolved. Those cases will be reported. But the role of such precedents and reports will be less cardinal, their authority less binding, in the absence of full adversarial argument by expert lawyers with the tools and training to cite all the relevant preceding cases. If so, the road we have travelled since the reign of Henry II will indeed have come to an end.

PMM