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Cultivating a new civil court culture

News

More “responsible” use of the civil court system is at the heart of widespread reforms under consideration by the state government.

Victorian Attorney-General Rob Hulls has “chest thumping” and “grandstanding” lawyers in his sights as he sets about far-reaching reform of the civil justice system.

Mr Hulls, in launching the long-awaited Civil Justice Review report, emphasised the need for a cultural change in the civil courts.

He described the report by the Victorian Law Reform Commission (VLRC) as groundbreaking and momentous, saying its 177 recommendations dealt with “widespread cultural change”.

“While cultural change can be the hardest to achieve, this is often the key to driving reforms across the whole system,” he said at the report’s launch on 28 May.

“To this end the report encourages a more responsible use of the civil justice system by parties to litigation and the legal profession.

“It emphasises the need to move away from the idea that court time is endless, that justice means giving parties as much time as they can afford to slug it out in court.

“A cultural shift in this direction could spell the demise of some of the least helpful aspects of the adversarial system, such as parties grandstanding for tactical gains or arguing every point regardless of merit –all of which contribute to lengthy, costly court proceedings.”

Mr Hulls later told reporters including the LIJ that input from a range of stakeholders, including the courts, the LIV and the Victorian Bar, was important to achieving cultural change.

“Gone are the days where litigators, where lawyers, think they can continue to chest thump and take every point possible really with no eye on the main game which is resolving the dispute,” he said.

“This report makes it quite clear there is a new way.”

But LIV president Tony Burke challenged the notion that lawyers were acting irresponsibly.

“The implication we have been irresponsible in the conduct of litigation before the courts on behalf of our clients is unwarranted and not supported by any evidence,” he told the LIJ

“Any lawyer who conducted himself or herself in that way would be subject to disciplinary complaints and could be at risk of being ordered to pay costs, which is always at the discretion of the court.

“Judges don’t want to waste their time either. They are always saying: ‘Where are you going with that line of questioning? What’s the point of that? It’s not an issue, move on’.”

Victorian Bar president Peter Riordan SC agreed.

“I don’t think we should be starting from the proposition that lawyers don’t recognise the need to get their clients the most cost-effective, quickest solutions,” he told the LIJ.

“I think most lawyers are well and truly on line with that, and you just need to look at the way they promote themselves.

“I don’t think that we are talking about a cultural change here, but there are some parts of the culture that we can improve on.

“But it seems to be forgotten that Victoria has the most comprehensive mediation strategy of anywhere in the world.”

In its report, the VLRC acknowledged the magnitude of the task of reviewing the civil justice system.

“Criticisms of the civil justice system, particularly in the higher courts, have focused on the problems of delay, inefficiency and excessive or disproportionate legal costs,” the VLRC says in its executive summary.

“Problems are easy to identify. Solutions are far more elusive.

“Moreover, there is relatively little empirical data with which to assess the overall magnitude of the problems, the causal explanations for the problems, or the impact of reforms.”

The VLRC said the recommendations, developed over 18 months of consultation and research, would “fundamentally change the way parties and the courts conduct civil litigation”.

The outcome of the proposed reforms would be cheaper, fairer and simpler civil litigation.

The recommendations include:

  • pre-action requirements for communication and exchange of information;
  • new statutory standards to govern the conduct of key participants in civil proceedings;
  • increased judicial powers to impose limits on pre-trial processes and hearings;
  • new procedures for pre-trial oral examination of persons with relevant information, with leave of the court;
  • a statutory provision to enable confidential (non-privileged) information to be obtained before trial;
  • new provisions, based on NSW reforms, to enhance judicial control over expert evidence and expert witnesses; and
  • greater assistance for self-represented litigants.

Mr Burke welcomed the “innovative review” but said the “burden of reform” should not fall entirely on the shoulders of litigation lawyers.

He said the changes potentially represented increased risks for solicitors through such proposals as limited amount of discovery, early deadlines imposed for court books and witness statements, and the pressure to predict the length, cost and outcome of court trials.

Increased costs and delays could also result from pre-trial oral examinations, particularly where the litigant was unrepresented.

Mr Burke also questioned courts having the power to order non-binding alternative dispute resolution (ADR) without parties’ consent.

“Without buy-in from the parties, this could be a futile exercise and thus adding yet another layer to the process,” he said.

Supreme Court Chief Justice Marilyn Warren, who helped launch the report, highlighted the increasing burden already being placed on the judiciary.

“The courts at all levels are inundated with more cases and longer, harder cases,” she said at the launch.

“More judge and magistrate time is being taken up to produce, generally, a decreasing output of cases.”

Chief Justice Warren said the review provided a template that must be embraced.

“The time has come for all of us who participate in litigation to commit to doing things in a different way,” she said.

“Litigators cannot continue to look to the courts to case manage and solve their problems. More needs to be done at the very beginning of litigation.”

Chief Justice Warren said she had chaired a committee made up of judges and masters who had been actively engaged with the report’s author, Dr Peter Cashman, and his colleagues.

“We did this because we understood the urgency that attaches to this review,” she said.

Opposition Attorney-General Robert Clark urged the government to act swiftly on the recommendations, accusing it of having a “leisurely approach” to important issues.

He gave in-principle support to judges playing a more active role in managing the progress of cases, reforms on compulsory disclosure of information to each other by the parties and greater control by judges over expert evidence.

Mr Hulls said the government was committed to the “broad themes” of the recommendations.

He said some reforms could be implemented quickly and others would be included in Justice Statement Two, due to be launched in August.

Mr Hulls said money had already been set aside in this year’s state Budget to expand ADR and to pilot judge-led mediation.

But he said the majority of the reforms related to changing the culture and he hoped litigators would back them.

“There will be change, there will be reform and the general thrust of the reforms are accepted by the government, and indeed by the Chief Justice,” he told reporters.

“So my message to litigators is get on board with these reforms, be part of the solution, not the problem,” Mr Hulls said.

At a glance

The Civil Justice Review recommends:

  • New statutory standards to govern the conduct of key participants to accelerate disclosure of information, encourage greater cooperation, limit the issues in dispute, and increase the prospect of ADR.
  • New requirements for parties and lawyers to certify or verify that allegations made in pleadings have merit.
  • Making a wider range of ADR options available.
  • Facilitating more proactive judicial management including an extension of the docket system, permitting judges to call witnesses and earlier trial dates.
  • Earlier and more cost-effective disclosure including through pre-trial oral examinations,
    narrowing the range of documents required to be produced on discovery and enabling confidential (non-privileged) information to be obtained before trial.
  • Providing greater assistance to self-represented litigants.
  • Establishing a new funding body, the Justice Fund, to provide financial assistance to parties with meritorious civil claims, and indemnity of any adverse costs orders.
  • Reducing the cost of litigation through setting up a Costs Council, requiring parties to disclose estimates of costs and actual costs incurred, further developing fixed or capped costs in particular areas of litigation, introducing a common scale of costs across courts and prohibiting law firms profiting from disbursements except where clients of reasonably substantial means agree to pay.
  • Establishing a new Civil Justice Council with ongoing statutory responsibility for review and reform of the civil justice system.

The full report is available at http://www.lawreform.vic.gov.au.

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