Judge advocates embracing change to preserve and enhance civil justice

18 Jan 2019

Lord Justice Gross delivered the London Common Law & Commercial Bar Association (LCLCBA) Annual Lecture 2019, 'The Civil Justice System in a Time of Chance'. Gross LJ proposed that to preserve and enhance the best features of the English and Welsh justice system, change must not simply be accommodated, it must be embraced. In addition, the Court of Appeal judge considered the mutually supportive relationship between the courts and arbitration.

In summary, Gross LJ's speech explored the propositions that:

• civil justice is a public good, not simply another public (or consumer) service

• the judiciary and the legal profession are key to the civil justice system's success both domestically and internationally

• the Rolls Building jurisdictions are not 'islands unto themselves' but one part of the wider whole of the civil jurisdiction

• the need to welcome and embrace change, whether, for example, that be substantive, procedural or technological

• the mutually supportive relationship between the courts and arbitration

The courts and arbitration

Gross LJ began his discussion of this proposition by stating that civil justice extends beyond the courts and encompasses arbitration, with the two being mutually supportive and enjoying a 'symbiotic relationship' where the strength of one helps secure the strength of the other.

The judge's speech also contained the following points of note:

• an endorsement of the court's light-touch supervisory and accessory role in supporting arbitration under the Arbitration Act 1996 ()

• his view that the balance struck in respect of the test for appeals on points of law made pursuant to (one of the notable features of the Act) is 'broadly right', stating '[i]t is a test that properly respects party autonomy, while enabling appropriate disputes to come before the courts. Support where it is wanted and where it is needed. Otherwise, as in many other aspects of dispute resolution, party choice is respected, with an emphasis on finality, in accordance with the wishes of the parties.'

• that London arbitration reciprocates the courts' support—Gross LJ stated that the dynamism of London arbitration is a 'real strength' of legal London and of the City of London

• that English common law, particularly commercial law, has, to a significant degree, been shaped by material provided by the Commercial Court or arbitral proceedings—in a footnote, the judgestated, 'As Lord Goff memorably put it, "For the English, the characteristic commercial contract is a contract for the carriage of goods by sea."' (Lord Goff of Chieveley, The Future of the Common Law, 46 Int'l & Comp, LQ (1997) pg 751)

• the practical experience of those participating in, and hearing arbitrations is brought to bear in arguments before the courts. It also increases the skills and attractiveness of the legal profession and the judiciary, increasing the international reputation of the English courts

• that the place of international arbitration in global dispute resolution is secure

• that London arbitration 'ought' to be 'wholly unaffected' by Brexit

• whether confidential arbitration may be appropriate in certain contexts, eg the use of non-disclosure agreements in certain contexts

• that international arbitration (and investment arbitration) needs to be 'alive to international sensitivities' and be perceived as fair by the developed and developing world

Source: Speech: The Civil Justice System in a Time of Change

Filed Under: Arbitration , Courts