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B2. Current criticisms of civil justice systems in other jurisdictions
| 15. | In recent years, disquiet has again been expressed in many common law jurisdictions regarding the adequacy of existing civil justice systems. |
| 16. | In England and Wales, in his Interim Report issued in June 1995, Lord Woolf stated :- |
| "Throughout the common law world there is acute concern over the many problems which exist in the resolution of disputes by the civil courts. The problems are basically the same. They concern the processes leading to the decisions made by the courts, rather than the decisions themselves. The process is too expensive, too slow and too complex. It places many litigants at a considerable disadvantage when compared to their opponents. The result is inadequate access to justice and an inefficient and ineffective system." (Note 7) | ||
| 17. | In July 1996, in his Final Report, Lord Woolf elaborated as follows :- |
| "The defects I identified in our present system were that it is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under-resourced litigant. It is too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; and it is incomprehensible to many litigants. Above all it is too fragmented in the way it is organised since there is no-one with clear overall responsibility for the administration of civil justice; and too adversarial as cases are run by the parties, not by the courts and the rules of court, all too often, are ignored by the parties and not enforced by the court." (Note 8) | ||
| 18. | In Australia in 1996, Sir Gerard Brennan, a former Chief Justice, addressed a major conference in the following terms :- |
| "The overwhelming problem is access to justice - the perennial difficulties of cost and complexity. There is every indication that these difficulties will intensify ...... The courts are overburdened, litigation is financially beyond the reach of practically everybody but the affluent, the corporate or the legally aided litigant; Governments are anxious to restrict expenditure on legal aid and the administration of justice. It is not an overstatement to say that the system of administering justice is in crisis. Ordinary people cannot afford to enforce their rights or litigate to protect their immunities ... If the burden of litigation will increase, some solutions must be found and practical solutions are likely to be radical." (Note 9) | ||
| 19. | A year earlier, in influential articles written by Mr Justice D A Ipp of the Supreme Court of Western Australia, the concerns had been put as follows :- |
| "It is sufficient to state that there is a general perception that the administration of justice is unable to cope with the vast increase in litigation, and injustices through unnecessary delays, excessive costs and other causes are rife. Pessimism and cynicism about justice and the legal system abound. This has led to what has been described as a loss of faith in the adversary system." (Note 10) | ||
| 20. | Similar sentiments were expressed in March 1995 in Ontario. The First Report of the Attorney General's Civil Justice Review described the position in these terms :- |
| "Unreasonable delay in the disposition of disputes is, indeed, 'the enemy of justice and peace in the community'. It leads inevitably to unreasonable costs. It breeds inaccessibility. It fosters frustration, and frustrates fairness. The administration of justice falls into disrepute. People become alienated. | ||
| Patterns of this nature have been developing in Ontario over the past number of years. Unacceptable delays and mounting costs, with their attendant implications for inaccessibility and mistrust of the system, have become endemic. | ||
| Backlogs are mushrooming on the crowded urban calendars of Toronto, Ottawa, Windsor, Brampton, Newmarket and Whitby, to name only the hardest hit centres. There is more civil litigation. It is more complex. It takes longer to prepare, to settle and to try. It is fostered by an increasingly 'rights-oriented' and litigious society; enhanced in the prism of mass media coverage; and nurtured by a continuing onslaught of legislation from all levels of government giving people more and more opportunities to go to court. | ||
| These developments pose serious threats to the civil justice system which, simply put, is in a crisis situation." (Note 11) | ||
| 21. | Such problems are not confined to common law countries but tend to be shared in developed countries of various legal backgrounds. Adrian Zuckerman, editing a volume (Note 12) of comparative surveys of the civil justice systems in a number of countries, (Note 13) commented as follows :- |
| "A sense of crisis in the administration of civil justice is by no means universal, but it is widespread. Most countries represented in this book are experiencing difficulties in the operation of their system of civil justice. Whether the difficulties take the form of exorbitant costs or of excessive delays, they have serious implications." (Note 14) | ||
| 22. | Indeed, as the Australian Law Reform Commission ("ALRC") states :- |
| "...... it is difficult to find a civil justice system in the world which does not have problems relating to cost and delay, concerns about levels of access, representation and resourcing, and questions about the management of disputes and litigation." (Note 15) |
Notes
| 7 | WIR p 4, §1. <back> |
| 8 | WFR, p 2, §2. <back> |
| 9 | Sir Gerard Brennan, "Key Issues in Judicial Administration" (1997) 6 Journal of Judicial Administration 138, 139; quoted in GTC, p 24. <back> |
| 10 | Mr Justice D A Ipp, "Reforms to the Adversarial Process in Civil Litigation", Pt I (1995) 69 ALJ 705; Pt II 69 ALJ 790; at 705. <back> |
| 11 | At para 1.1. This Report and the Final Report can be read or downloaded at <http://www.attorneygeneral.jus.gov.on.ca> <back> |
| 12 | Civil Justice in Crisis, Adrian A S Zuckerman (Ed) (OUP 1999). <back> |
| 13 | Including the United States, England and Wales, Australia, Germany, Japan, Italy, France, Brazil, Greece, Spain, Portugal, the Netherlands and Switzerland. <back> |
| 14 | Op cit, Chap 1 Adrian A S Zuckerman: Justice in Crisis: Comparative Dimensions of Civil Procedure. Holland, Germany and to some extent Japan (which has a very low rate of litigation) were notable exceptions. <back> |
| 15 | ALRC No 89, p 7. <back> |
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