Is the British litigation system a failure?

 

By Hamid Sultan Abu Backer

In my view, the British litigation and criminal justice system has been a failure in many countries, as evidenced by severe case backlogs.

In some countries, the chief justices have continuously stated that the backlogs in their courts stretch beyond 30 years.

Case backlogs in the context of social justice as well as humanitarian jurisprudence is an anathema – as delayed justice is a denial of justice itself.

In addition, it causes untold misery, hardship, financial stress and health issues to litigants and their families.

Further, litigation stress adds to substantial long-term medical costs to the government.

The British system in civil and commercial matters is not concerned with substantive justice which the litigants legitimately expect. It relies on aristocratic rules of procedure and evidence to provide justice.

This procedure has been jettisoned universally in the arbitration model, and, in particular, the New York Convention 1958 read with the United Nations Commission on International Trade Law (UNCITRAL) Model Law 1985, which was adopted under Malaysia’s Arbitration Act 2005.

It also impliedly means the British system for civil and commercial matters has been rejected by the UN organisation.

In all Model Law countries, the rich have the right now to choose aristocratic arbitration institutions and pay hefty fees and costs for arbitrators as well as to the arbitral institutions, instead of court fees and expenses to the state.

This is done primarily to escape court backlogs, complex rules of court, the law of evidence, uncertainties in judicial decisions, inordinate delays and the courts lack of subject matter expertise to deal effectively with civil and commercial disputes in an expeditious and coherent manner.

Unlike the arbitration model, the British system also does not allow disputes to be heard in a private and confidential manner.

The lack of such advantages in state courts breaches basic principles of social justice and equal access to justice. Speedy access to justice for the rich, if denied or made inaccessible to the poor may well breach basic constitutional guarantees.

This existential inequality in all Model Law countries can be easily remedied by implementing the University-cum-Court Annexed Arbitration (UCCA) to secure affordable arbitration for matters filed in courts.

The UCCA Model does not disturb the existing working model of global arbitration centres which are mainly dependent on a pre-arbitration clause in the commercial agreement itself.

In criminal cases, the accused in a non-bailable offence could be languishing in jails for umpteen years only to hear a verdict of “not guilty” by the apex court. The courts in almost all countries will not order any compensation against the prosecution upon acquittal.

In my view, delayed justice is a self-inflicted terminal disease of the administration of justice in all Commonwealth countries which had removed the jury system and allowed the trying of facts to be handled by the judiciary.

This conduct is a blatant breach of the 1215 Magna Carta where the King of England had guaranteed his barons that the trying of facts will not be done by the judiciary. This led to the jury system which removed the abuse of sovereign power by the judges or king’s representatives.

The rational solution to backlog is mediation and the UCCA affordable arbitration concept which I have been advocating for the past six years.

Current arbitration services provided by institutions globally are too unaffordable to be introduced into the court system, in particular the subordinate courts. However, arbitration under the UCCA concept will be affordable to all litigants.

Although not a dispute resolution mechanism, mediation – provided it is not abused – is a welcome feature which many countries are encouraging.

However, mediation itself does not sustain a litigant’s legal rights because he has to compromise some of them to get an early settlement due to delays in the court system itself or uncertainties that may result from decisions by various levels of court and to avoid court stress, etc.

Countries facing backlogs have not offered any viable solution, except to forcefully advocate mediation, not necessarily to the advantage of the litigants who have approached the courts to get their disputes resolved, but more to help the courts. Many countries think mediation can clear backlogs, but it can only clear a small fraction of court cases.

When I started practice, mediation was done, with the consent of clients, between lawyers for the parties to the dispute. Now a mediator is appointed to make it easier for the case to be settled by mediation, or by directly facilitating the mediation process with the litigating parties.

Mediation cases are included in the statistics of clearing court backlogs, when in essence it is not a dispute resolution mechanism of the court system.

When the legal industry suffers from ethics, ultimately the client will be pressured to settle by mediation by the system itself.

Some lawyers will go happily with the agreed fees with no discount in fees though a full trial was not held. Such a practice is a blatant abuse of social justice which no country should condone.

If affordable arbitration is available when mediation fails, the room for abuse by the system will be negligible and will indeed help to clear backlogs expeditiously and with integrity.

Arbitration is like a court hearing itself and the disputes are honourably settled by an agreed arbitrator of the parties, referred to as party autonomy. The rules and evidence are simplified and user-friendly. It is truly a social justice system and one advocated by major religions.

UCCA will remove litigation stress and long-term medical care costs for the government. Further, it will help drastically reduce civil and commercial workload of the judiciary and give them the space to deal mainly with criminal and public law cases.

No country has done a systematic study on my complaint on litigation stress, despite major religions in their divine text encouraging disputes to be settled by arbitration or mediation models.

For example, the Quranic formula for dispute resolution is mediation or arbitration. Sadly, the Prime Minister has not responded to my team’s letter to introduce a jurists approved arbitration concept to replace a trial system in the courts. This can also be applicable in syariah courts upon the approval of syariah jurists. In fact, I am told the Madani concept comes from Medina.

I hope the Madani policy makers will note that my concept has received positive reviews from leading Malaysian and international jurists, including the late Gopal Sri Ram and also an ex-President of UK’s Supreme Court who described the concept as ingenious.

Why then is it so difficult for Malaysian politicians to walk their talk? - FMT

Hamid Sultan Abu Backer is a retired Judge of the Court of Appeal, Professor of Arbitration and Dispute Resolution at MAHSA University, and an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.