| 32. |
Mr Justice Ipp was of
the same view. He stressed that certain aspects of the adversarial system are immutable
and crucial to fairness in the proceedings. (Note 26) These are the principles which require the application of
and appearance of compliance with, the basic rules of natural justice precluding bias and
requiring the court fairly to hear both sides. |
|
|
| 33. |
These principles are
reflected, for example, in decisions holding :- |
|
|
| 33.1 |
that the mode of
presentation of each party's case (as to the evidence to call, the questions to ask in
cross-examination and so forth) rests with counsel and is not to be dictated by the judge;
(Note 27) |
|
|
| 33.2 |
that in a civil case,
in the absence of the parties' acquiescence, the judge is not entitled himself to call a
witness; (Note 28) and, |
|
|
| 33.3 |
that the judge must
avoid descending into the arena by, for instance, taking over the examination of a
witness, lest he appear to have lost his impartiality. (Note 29) |
|
|
| 34. |
It is the excessive and
inappropriate application of such principles which gives rise to counter-productive
results. For instance :- |
|
|
| 34.1 |
Pleadings are supposed
to identify the issues between the parties, promoting fairness and trial efficiency by
preventing surprise. Yet in many cases, the adversarial attitude of the parties and the
court's non-interventionist stance result in pleadings which raise numerous superfluous
questions. They obscure rather than clarify the issues and complicate the case, delaying
or preventing settlement and increasing costs. |
|
|
| 34.2 |
Similarly, discovery is
intended to ensure procedural fairness and to promote an equality of arms between the
parties. Yet adversarial psychology has frequently led to non-compliance with the parties'
obligations of disclosure. Sometimes misuse of discovery is a deliberate tactic, with a
wealthy party precipitating expensive interlocutory battles over peripheral documents or
overwhelming the other side with masses of documents which are at best of marginal
relevance, inflating the complexity and cost of the action. |
|
|
| 34.3 |
Experts are supposed to
help the court, yet adversaries use them to excess and often as partisan "hired
guns". |
|
|
| 34.4 |
Witness statements are
intended to provide mutual disclosure of the relevant evidence to encourage early
settlement, prevent surprise and save costs by shortening the trial. Yet, they are often
prepared by teams of lawyers as part of the adversarial weaponry, giving rise to great
expense and producing a statement which does not represent the maker's evidence so much as
the "massaged" case which the lawyers desire to place before the court. |
|
|
| 34.5 |
Passivity on the bench,
no doubt with the words of Denning LJ in Jones v NCB in mind, (Note 30) may often lead to trials significantly overrunning
their time estimates. |
|
|
| 35. |
Commentators argue that
distortions such as these flow naturally from the adoption of adversarial principles in
procedural structures. |
|
|
| 35.1 |
In the first place, the
adversarial design by definition places the parties on a war footing, with each trying to
secure victory on a winner-take-all basis. It is not a question of the parties going to
the court simply to let an independent arbiter decide who is right, but of going to court
to "win" and to "beat" the other side. |
|
|
| 35.2 |
It is therefore an
attitude not conducive to openness and the fair identification of the issues, the evidence
and applicable law. Lawyers often feel bound to file pleadings raising a whole range of
issues, when the case is in reality a one-issue case. Procedural distortions like those
already discussed are a natural consequence. |
|
|
| 35.3 |
The psychology of
warfare also tends to promote disproportionate efforts and spending on interlocutory and
objectively minor aspects of the case. An interlocutory application, whatever its outcome,
may be likely to have little impact on the final result of the action. However, the
adversarial ethic may present it as a necessary part of the general campaign to defeat and
cow the enemy, justifying expenditure of both the parties' and the court's resources. |
|
|
| 35.4 |
Secondly, in promoting
the neutrality of the court, procedural rules have tended to leave the progress of the
action in the parties' hands. Enforcing procedural rules or interlocutory orders is left
up to the litigants who decide whether and when to make an interlocutory application. They
also decide when to set the case down for trial. This is a feature of the system which
plainly lends itself to delays and possible abuse. |
|
|
| 35.5 |
The "hands
off" approach by the court is heavily dependent "upon the lawyers acting
honestly and ethically, not only in the presentation of evidence and argument, but in not
deliberately delaying or lengthening the proceedings or employing obstructionist
tactics." (Note 31) Unfortunately, such reliance is in many cases unjustified.
Procedural abuses attributable to lawyers (whether through incompetence, negligence or by
design) are not difficult to find. This leads to the running up of costs, increasing
delays and the running down of the system's effectiveness. |
|
|
| 35.6 |
Thirdly, the unbridled
adversarial system makes it difficult to settle cases. To display willingness to negotiate
early in the case is often considered too risky as it may be interpreted as a sign of
weakness. In consequence, settlements often occur late in the proceedings and after much
money has been unnecessarily spent on steps taken to prepare for a trial that never takes
place. |
