Justice and Efficiency in Mega-Litigation 9781509910892, 9781509910922, 9781509910915

Table of contents :
Acknowledgements
Contents
PART I: THE PROBLEM
1. Introduction
I. Aim and Scope of this Book
II. Methodology
III. Structure of this Book
2. Justice and Efficiency as Aims of Civil Procedure
I. Justice
II. Efficiency
III. Relationship between Party and Public Perspectives on Justice and Efficiency
IV. Conclusion
3. What is Mega-Litigation?
I. Towards a Definition of Mega-Litigation
II. Causes of Mega-Litigation
III. Qualitatively Different from Ordinary Litigation?
IV. Conclusion: Mega-Litigation Described
4. Mega-Litigation in the Justice System
I. The Burden of Mega-Litigation
II. The Benefits of Mega-Litigation
III. Is there Tension between Justice and Efficiency in Mega-Litigation?
IV. Conclusion
PART II: APPROACHES TO THE PROBLEM
5. Justice and Efficiency in Civil Procedure: Theoretical Perspectives
I. Zuckerman: Three Dimensions of Justice
II. Posner: Economic Analysis of Civil Procedure
III. Dworkin: A Rights-Based Approach
IV. Summers: Process Values
V. Conclusion
6. A Brief History of Justice and Efficiency in Civil Procedure
I. The Judicature Acts
II. Post-Judicature Acts: Complete Justice
III. The Rise of Case Management
IV. Conclusion
7. The Current Position in England
I. Civil Procedure in General
II. Complex Litigation
III. Conclusion
8. The Current Position in Australia
I. The Australian Court System
II. Case Management in Australia
III. Participants' Views
IV. Conclusion
PART III: JUSTICE AND EFFICIENCY IN MEGA-LITIGATION
9. The Mega-Litigation Judge
I. Characteristics of the Mega-Litigation Judge
II. Personality and Experience
III. Conclusion
10. Procedural Techniques in Mega-Litigation
I. Continuity of Case Management
II. Defining the Issues
III. Discovery
IV. Separate Issues
V. Sharing the Judicial Task
VI. Structuring the Trial
VII. Presenting Evidence
VIII. Controlling Submissions
IX. Using Technology
X. Managing Relationships
XI. Conclusion
11. Justice and Efficiency in Mega-Litigation
I. Innovation
II. Focus on the Real Issues
III. Resolving the Tension: Expert Intuition
IV. In Defence of Expert Intuition
V. Conclusion
12. Conclusions
I. England and Australia: Similar but Different
II. Practical Consequences: Allocation, Education and Recruitment
III. Procedural Reform?
IV. Conclusion
Appendix A. Qualitative Research Methodology
I. Stages of the Research
II. Selection of Interview Participants
III. Recruitment of Interview Participants
IV. Development of Interview Topics
V. Interview Procedure
VI. Data Analysis
VII. Participant Review and Anonymity
VIII. Limitations of Study
Appendix B. Information Provided to Interview Participants Prior to Interviews
Outline of Topics for Participants
Theoretical Perspectives on Procedural Law
Appendix C. List of Interview Participants
Index

Citation preview

JUSTICE AND EFFICIENCY IN MEGA-LITIGATION Justice and Efficiency in Mega-Litigation explores the phenomenon of extremely long-running, resource-intensive civil litigation known as ‘mega-litigation’. Such litigation challenges the courts to reconcile the objectives of justice and ­efficiency – for the parties to the case and for the community. Drawing on interviews with judges of the courts of England and Wales, and of Australia, this book shows how judges have responded to these challenges. It situates mega-litigation within broader developments in civil procedure and case management, as well as theoretical debates about the role of courts and the purpose of civil procedure. The book highlights the importance of intensive, creative and flexible case management; focus on the issues in dispute; and, ultimately, each judge’s expert intuition.

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Justice and Efficiency in Mega-Litigation Anna Olijnyk

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © Anna Olijnyk, 2019 Anna Olijnyk has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Olijnyk, Anna, author. Title: Justice and efficiency in mega-litigation / Anna Olijnyk. Description: Chicago : Hart Publishing, 2019.  |  Includes bibliographical references and index. Identifiers: LCCN 2019001699 (print)  |  LCCN 2019001888 (ebook)  |  ISBN 9781509910908 (EPub)  |  ISBN 9781509910892 (hardback) Subjects: LCSH: Court congestion and delay—Australia.  |  Procedure (Law)—Australia.  |  Court administration—Australia.  |  BISAC: LAW / Civil Procedure. Classification: LCC KU3488.5 (ebook)  |  LCC KU3488.5 .O45 2019 (print)  |  DDC 347.94/05—dc23 LC record available at https://lccn.loc.gov/2019001699 ISBN: HB: 978-1-50991-089-2 ePDF: 978-1-50991-091-5 ePub: 978-1-50991-090-8 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

ACKNOWLEDGEMENTS Many people helped me with this book. The judges who gave up their time to participate in interviews did so generously and graciously, providing thoughtful insights that placed my research questions in an entirely new light. It goes without saying that I could not have written the book without their contributions. Parts of this book are based on my PhD thesis. I was fortunate to have two excellent PhD supervisors. Professor John Williams constantly kept my eye on the big picture, pushing me to make my work better and more original. The Honourable David Bleby QC provided invaluable help with developing the interviews and strengthening the argument. I am also grateful to those who established the scholarships that enabled me to undertake full-time study towards the PhD: the FA & MF Joyner Scholarship in Law, Ian Wilson Liberal Research Scholarship, Zelling-Gray Scholarship and Baker Scholarship in Law. The interviews with English judges were conducted while I was a visiting researcher at King’s College London. Thanks are due to James Lee for being a wonderful host for this visit. Thanks also to John Sorabji for his guidance on securing approval for interviews, and on the English civil justice system. My colleagues, at the University of Adelaide and in the broader academic community, were an endless source of intellectual, practical, material and emotional support at every step of the process. Special thanks to Gabrielle Appleby, Paul Babie, Mark Bruerton, Peter Burdon, Craig Ellis, Laura Grenfell, Samaneh Hassanli, Stacey Henderson, Joanna Howe, Michael Legg, Suzanne Le Mire, Renae Leverenz, David Moon, Sarah Murray, Tamsin Paige, Alex Reilly, Gabriella Shailer, Kellie Toole, Adam Webster, Vanessa White, Stefanie Wilkins and Melissa de Zwart. Thanks also to the professional and Law Library staff at Adelaide (especially Sheena Beaven, Cheryl Chapman, Moira Groves, Peter Jacobs, Margaret Priwer and Corinne Walding). Thanks to the team at Hart for their professional and efficient work on the book, and Ceri Warner for her meticulous editing. Finally, thank you to my family, especially my mother Sarah Olijnyk, for sticking with me through this project. It can’t have been easy.

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CONTENTS Acknowledgements��������������������������������������������������������������������������������������������������������v PART I THE PROBLEM 1. Introduction�������������������������������������������������������������������������������������������������������������3 I. Aim and Scope of this Book�������������������������������������������������������������������������5 II. Methodology��������������������������������������������������������������������������������������������������6 III. Structure of this Book�����������������������������������������������������������������������������������7 2. Justice and Efficiency as Aims of Civil Procedure�����������������������������������������������9 I. Justice��������������������������������������������������������������������������������������������������������������9 A. Justice between the Parties�����������������������������������������������������������������10 B. Public Justice����������������������������������������������������������������������������������������11 II. Efficiency�������������������������������������������������������������������������������������������������������13 A. Efficiency for the Parties���������������������������������������������������������������������13 B. Public Efficiency����������������������������������������������������������������������������������13 III. Relationship between Party and Public Perspectives on Justice and Efficiency�����������������������������������������������������������������������������15 IV. Conclusion����������������������������������������������������������������������������������������������������17 3. What is Mega-Litigation?��������������������������������������������������������������������������������������18 I. Towards a Definition of Mega-Litigation�������������������������������������������������18 A. High Stakes�������������������������������������������������������������������������������������������19 B. Multiple Parties������������������������������������������������������������������������������������20 C. Hearing Time���������������������������������������������������������������������������������������21 D. Number of Documents�����������������������������������������������������������������������22 E. Complexity�������������������������������������������������������������������������������������������23 II. Causes of Mega-Litigation��������������������������������������������������������������������������24 A. Complexity of Commercial Life��������������������������������������������������������24 B. Technology and Documents��������������������������������������������������������������26 C. Funding Available to Litigants�����������������������������������������������������������27 D. Substantive Law�����������������������������������������������������������������������������������29 E. Legal Culture����������������������������������������������������������������������������������������30 F. Mega-Litigants in Person��������������������������������������������������������������������32 III. Qualitatively Different from Ordinary Litigation?����������������������������������33 IV. Conclusion: Mega-Litigation Described���������������������������������������������������36

viii  Contents 4. Mega-Litigation in the Justice System�����������������������������������������������������������������38 I. The Burden of Mega-Litigation������������������������������������������������������������������38 II. The Benefits of Mega-Litigation�����������������������������������������������������������������42 III. Is there Tension between Justice and Efficiency in Mega-Litigation?�������������������������������������������������������������������������������������43 IV. Conclusion����������������������������������������������������������������������������������������������������46 PART II APPROACHES TO THE PROBLEM 5. Justice and Efficiency in Civil Procedure: Theoretical Perspectives����������������51 I. Zuckerman: Three Dimensions of Justice�������������������������������������������������52 A. The Theory��������������������������������������������������������������������������������������������52 B. Participant Reactions��������������������������������������������������������������������������54 II. Posner: Economic Analysis of Civil Procedure���������������������������������������56 A. The Theory��������������������������������������������������������������������������������������������56 B. Participant Reactions��������������������������������������������������������������������������59 III. Dworkin: A Rights-Based Approach���������������������������������������������������������61 A. The Theory��������������������������������������������������������������������������������������������61 B. Participant Reactions��������������������������������������������������������������������������64 IV. Summers: Process Values����������������������������������������������������������������������������66 A. The Theory��������������������������������������������������������������������������������������������66 B. Participant Reactions��������������������������������������������������������������������������70 V. Conclusion����������������������������������������������������������������������������������������������������72 6. A Brief History of Justice and Efficiency in Civil Procedure���������������������������74 I. The Judicature Acts��������������������������������������������������������������������������������������75 II. Post-Judicature Acts: Complete Justice�����������������������������������������������������76 III. The Rise of Case Management�������������������������������������������������������������������80 IV. Conclusion����������������������������������������������������������������������������������������������������84 7. The Current Position in England�������������������������������������������������������������������������86 I. Civil Procedure in General�������������������������������������������������������������������������86 A. The Woolf Report��������������������������������������������������������������������������������86 B. The Jackson Report�����������������������������������������������������������������������������90 C. The Human Rights Act�����������������������������������������������������������������������93 II. Complex Litigation��������������������������������������������������������������������������������������94 A. The Commercial Court�����������������������������������������������������������������������94 B. The Long Trials Working Party����������������������������������������������������������96 C. The Financial List��������������������������������������������������������������������������������98 D. Mega-Litigation Outside the Commercial Court and Financial List��������������������������������������������������������������������������������98 III. Conclusion����������������������������������������������������������������������������������������������������99

Contents  ix 8. The Current Position in Australia����������������������������������������������������������������������101 I. The Australian Court System�����������������������������������������������������������������101 A. Overview������������������������������������������������������������������������������������������101 B. Mega-Litigation in Australia���������������������������������������������������������103 II. Case Management in Australia�������������������������������������������������������������104 A. The Quiet Revolution���������������������������������������������������������������������104 B. The High Court on Case Management: Sali and JL Holdings�������������������������������������������������������������������������������105 C. Reaction to JL Holdings������������������������������������������������������������������107 D. Aon: Case Management Rises Again��������������������������������������������111 III. Participants’ Views����������������������������������������������������������������������������������114 IV. Conclusion�����������������������������������������������������������������������������������������������116 PART III JUSTICE AND EFFICIENCY IN MEGA-LITIGATION 9. The Mega-Litigation Judge���������������������������������������������������������������������������������121 I. Characteristics of the Mega-Litigation Judge��������������������������������������122 A. Active������������������������������������������������������������������������������������������������122 B. Creative��������������������������������������������������������������������������������������������128 C. Flexible���������������������������������������������������������������������������������������������130 D. Fair����������������������������������������������������������������������������������������������������132 II. Personality and Experience��������������������������������������������������������������������136 III. Conclusion�����������������������������������������������������������������������������������������������141 10. Procedural Techniques in Mega-Litigation������������������������������������������������������142 I. Continuity of Case Management����������������������������������������������������������143 II. Defining the Issues����������������������������������������������������������������������������������145 III. Discovery��������������������������������������������������������������������������������������������������147 IV. Separate Issues�����������������������������������������������������������������������������������������150 V. Sharing the Judicial Task������������������������������������������������������������������������151 VI. Structuring the Trial�������������������������������������������������������������������������������156 VII. Presenting Evidence��������������������������������������������������������������������������������158 A. Documentary Evidence�����������������������������������������������������������������158 B. Written Witness Statements����������������������������������������������������������160 C. Objections to Evidence������������������������������������������������������������������161 D. Limits on Cross-Examination�������������������������������������������������������162 E. Expert Evidence������������������������������������������������������������������������������164 VIII. Controlling Submissions������������������������������������������������������������������������168 IX. Using Technology������������������������������������������������������������������������������������169 X. Managing Relationships�������������������������������������������������������������������������172 XI. Conclusion�����������������������������������������������������������������������������������������������175

x  Contents 11. Justice and Efficiency in Mega-Litigation���������������������������������������������������������177 I. Innovation���������������������������������������������������������������������������������������������������178 II. Focus on the Real Issues���������������������������������������������������������������������������178 III. Resolving the Tension: Expert Intuition�������������������������������������������������182 IV. In Defence of Expert Intuition�����������������������������������������������������������������186 V. Conclusion��������������������������������������������������������������������������������������������������189 12. Conclusions����������������������������������������������������������������������������������������������������������191 I. England and Australia: Similar but Different�����������������������������������������191 II. Practical Consequences: Allocation, Education and Recruitment������193 III. Procedural Reform?�����������������������������������������������������������������������������������196 IV. Conclusion��������������������������������������������������������������������������������������������������196 Appendix A. Qualitative Research Methodology���������������������������������������������������198 Appendix B. Information Provided to Interview Participants Prior to Interviews���������������������������������������������������������������������������������������������������������207 Appendix C. List of Interview Participants��������������������������������������������������������������211 Index��������������������������������������������������������������������������������������������������������������������������213

part i The Problem

2

1 Introduction On an auspicious day in May 2006, Justice Ronald Sackville brought banana and chocolate cakes, decorated with the letter ‘C’, to the courtroom in which he was presiding over a trial in the Federal Court of Australia. Counsel, solicitors and court staff shared the cake with the judge.1 The occasion? The 100th sitting day of the trial in the C7 litigation: a massive competition law action to which some of Australia’s largest broadcasting, telecommunications and sporting organisations were parties.2 This explains why the cakes were decorated with the letter ‘C’ (the Roman numeral representing ‘100’). In the judgment, handed down more than a year later, Sackville J affixed an evocative label to the case: ‘mega-litigation’.3 This book explores the role of the judge in mega-litigation in the courts of England and Wales4 and Australia. The central inquiry is the way in which judges reconcile the demands of different objectives in mega-litigation. How do they ensure that justice is done between the parties, while also achieving a measure of efficiency? What is the relationship between the rights of the parties to a fair trial, and that of the community to efficient use of public resources? For the purposes of this book, ‘mega-litigation’ means civil litigation between well-resourced (and generally multiple) parties involving many complex factual issues, with high stakes and usually a long trial.5 Mega-litigation has become, and is likely to remain, a feature of the litigation landscape in both England and Australia. This book argues there are four different objectives to which court procedure can be directed: doing justice between the parties; doing justice from the point of view of the public (referred to here as ‘public justice’); achieving efficiency for the parties; and achieving efficiency for the public (‘public efficiency’).6 The relationship between these different – and sometimes conflicting – aims is a perennial

1 See ‘Celebration’, Sydney Morning Herald, 31 May 2006, available at http://www.smh.com.au/news/ cbd/doc-spuds-in-miners-heart/2006/05/30/1148956345146.html?page=fullpage#. 2 The judgment following the C7 trial has been reported as Seven Network Ltd v News Ltd [2007] FCA 1062. 3 Ibid [1]. 4 In this book, ‘England’ is used as shorthand for the jurisdiction ‘England and Wales’. 5 This definition is developed in chapter three. 6 These concepts are expanded upon in chapter two.

4  Introduction theme of literature on civil procedure,7 and a constant challenge for judges in trial courts. The tension between those objectives becomes acute in mega-litigation. Any single case of mega-litigation can dominate a judge’s working life for months or even years. The consequences for public efficiency are obvious: a large proportion of the publicly funded resources of the court system is devoted to a single dispute. There are also consequences for public justice: other litigants are forced to wait for their cases to be heard. From the public point of view, then, there is a strong argument that courts should seek to deal with mega-litigation efficiently. Efficiency is also desirable from the point of view of the parties, with costs in megalitigation running into nine-figure sums, and disputes taking years to finalise. But, of course, efficiency cannot be the only goal of courts dealing with megalitigation. Judges have a fundamental duty to do justice according to law – that is, justice between the parties – in each case.8 Can a judge, when dealing with mega-litigation, ever compromise justice between the parties in order to achieve efficiency? The answer to that question depends both on one’s conception of the role of judges, and on the practical reality of modern judicial life. Consider the following statement, by Austin J in a mega-litigation matter in the Supreme Court of New South Wales: The course of this trial raises a general question as to how far the court can and should go in abbreviating hearing time in a case which, as formulated and defended, is destined to cover huge and difficult evidentiary ground and to consume a large quantity of judicial resources. It seems to me that general issues about the allocation of judicial resources are not matters to be addressed by the trial judge, whose judicial duty is to hear and determine a case that has properly come before him or her, in accordance with established procedures. Manufacturing special procedures simply to deal with the length of the trial seems to me to raise a real risk of injustice, and so I have not done so. The fundamental principle to be observed by a judge who is required to manage and hear a long case, indeed any case, is to strive to do justice, procedural and substantive, between the parties according to law.9

On this view, justice between the parties is paramount; it cannot be subordinated to efficiency considerations. Contrast this position with the view that Justice Ray Finkelstein expressed in an interview for this research: I do not believe in perfect justice. Society cannot afford it. … There must be a trade‑off between … making sure that more money is not spent on a case than it is worth, and achieving a fair result. … So, for example, I would limit dramatically, discovery … 7 See, eg, Jeremy Bentham, Principles of Judicial Procedure in John Bowring (ed), The Works of Jeremy Bentham Vol II (William Tait, 1843) 5, 8; Sir Jack IH Jacob, ‘Accelerating the Process of Law’ in Sir Jack IH Jacob, The Reform of Civil Procedural Law (Sweet & Maxwell, 1982) 91, 95–96; Adrian AS Zuckerman, ‘Justice in Crisis: Comparative Dimensions of Civil Procedure’ in Adrian AS Z ­ uckerman (ed), Civil Justice in Crisis (Oxford University Press, 1999) 3; Murray Gleeson, ‘The Judicial Method: Essentials and Inessentials’ (2010) 9 The Judicial Review 377, 381. 8 This duty is embodied, for example, in the judicial oath: a promise to do right to all manner of people, according to law. 9 Australian Securities and Investments Commission v Rich (2009) 236 FLR 1, 33 [67].

Aim and Scope of this Book   5 If that meant documents that were relevant were not discovered, that is too bad. If parties can save millions of dollars in costs and in the process only one or two cases are badly decided the saving is justified. It is a perfectly utilitarian view. Do I sacrifice a few for the good of the many? Yes. Do I have any qualms about doing that? No.

Clearly, views on the relationship between justice and efficiency in megalitigation differ. This book draws on a range of resources to explore that relationship. Theoretical, doctrinal and rule-based responses to the problem are considered, but none of these provide a complete answer: all leave substantial room for judicial discretion. This book concludes that the relationship between justice and efficiency in mega-litigation is, in practice, managed by each judge in a flexible, bespoke manner. Judges in mega-litigation tend to be very hands-on from an early stage of litigation. Tension between different goals of civil procedure is best avoided through procedural innovation, and through sharp focus on the real issues in dispute. Where tension between those different goals is unavoidable, it is usually resolved not by the application of a rule or principle, but by the judge’s expert intuition.

I.  Aim and Scope of this Book The aim of this book is positive rather than normative. It does not set out to prescribe what judges should do in mega-litigation, nor to set an agenda for law reform. Rather, it records and analyses the way in which judges in fact deal with mega-litigation. These insights can inform debates, at an academic and policy level, about how to deal with mega-litigation in the future. Some of its conclusions clearly have practical implications. Most significantly, it emerges that the management of mega-litigation depends, to a large extent, on characteristics of the individual judge: personality, skill, experience and attitude. In the conclusion to this book, the ramifications of this finding for judicial recruitment and education and allocation of mega-litigation matters are considered. The book compares the management of mega-litigation in England and Australia. These two countries have much in common. Both are common law countries. Australia draws its common law heritage, court system and approach to procedure from England. They share broad similarities in legal, social and political culture. These similarities allow for many common themes to be drawn in the context of mega-litigation: as we will see, most of the major conclusions in this book are equally true for England and Australia. But there are also illuminating differences between the jurisdictions. Most prominent of these, in this book, are the different paths taken towards acceptance of judicial case management, and the distinct role of London’s Commercial Court. The Commercial Court emerges as something of a model for the management of mega-litigation; yet it is also sui generis, the child of a historic, geographic and economic context that cannot be replicated in Australia.

6  Introduction Australia and England are not, of course, the only countries in which megalitigation occurs. Singapore and the United States, for example, are noted mega-litigation hubs. Nor does this book say anything about mega-litigation in civil law jurisdictions. One might expect study of those jurisdictions to reveal further insights into the relationship between justice and efficiency in mega-litigation. This book is about the role of the judge in mega-litigation. There are, of course, other players in mega-litigation. Most prominent among them are the parties themselves and their lawyers. Less directly, the executive government of each jurisdiction plays a role in funding mega-litigation, both through the court system generally and through one-off injections of resources to deal with particular cases. The general community also has a stake in mega-litigation, given the amount of taxpayer funds it consumes, and its effect on access to the courts. This book touches on each of these players, but almost exclusively from the perspective of the judge. At times, the findings are critical of the conduct of lawyers and parties in mega-litigation, but a study of mega-litigation from their own perspectives might place their conduct in a different light. In examining the role of judges in mega-litigation, this book spends minimal time considering the place of alternative dispute resolution in bringing megalitigation to an end. This should not be taken as diminishing the significance of alternative dispute resolution, which is a critical consideration in any mega-­ litigation matter; rather, it reflects a focus on the task of the judge rather than the parties or lawyers. Most mega-litigation matters go through some process of alternative dispute resolution and many settle. But in the meantime, many hours of court time may be spent managing those matters. Therefore, even if a matter settles after alternative dispute resolution, the court will have had to engage with the questions considered here.

II. Methodology In this book, I combine qualitative interview data with doctrinal and theoretical material. The nature of mega-litigation, and the ways in which judges deal with mega-litigation, are examined using data collected in a series of semi-structured interviews.10 I interviewed 28 judges (16 in Australia and 12 in England) who had experience in mega-litigation, as either trial judge, case managing judge (or both) or head of jurisdiction at a time when a mega-litigation case was heard. By the end of the interviews in each jurisdiction, the point of ‘data saturation’ had been reached; that is, the interviews were no longer yielding new insights, ­indicating that the sample size was sufficient. A detailed methodology is provided in ­Appendix A, and a list of those participants who did not request anonymity appears in Appendix C.

10 More

information on the interview methods is provided in Appendix A.

Structure of this Book  7 These interviews were conducted because, in my opinion, the material available in law reports, journals and public speeches does not provide a comprehensive record of the task of the judge in mega-litigation. As expected, the interviews yielded rich insights into the ways in which judges wrestled with the practical, personal and philosophical challenges of mega-litigation. The qualitative element of this research places this book in a growing body of recent work, in England and Australia, of empirical study of courts and judges.11 Participants were given the option of remaining anonymous. English participants who opted for anonymity are referred to in this book by a pseudonym consisting of the letter E and a number: Participant E1, Participant E2, and so on. Australian participants are referred to by a pseudonym beginning with the letter A: Participant A1, Participant A2, and so on.

III.  Structure of this Book The book is divided into three parts. Part I (chapters one to four) sets up the ­problem with which this book is concerned. Chapter two explores an idea already introduced in this chapter: civil procedure has multiple objectives. This chapter explains the meaning of ‘justice’ and ‘efficiency’ from the point of view of the parties to litigation, and of the public. Chapter three develops a definition of ‘mega-litigation’ and chapter four explains the impact of mega-litigation on the justice systems of England and Australia. Part II (chapters five to eight) explores solutions to the problem of reconciling justice and efficiency in civil procedure generally, rather than in mega-litigation. Chapter five introduces some prominent theories on the relationship between justice and efficiency in court procedure: those of Adrian Zuckerman, R ­ ichard Posner, Ronald Dworkin and Robert Summers. Chapter six provides a brief history of the general approaches to Anglo-Australian civil procedure over the last 150 years. Chapters seven and eight bring this history up to date by examining the most significant developments of the last 25 years in English and Australian civil procedure respectively. These chapters also explain the context in which megalitigation most often takes place in each country. By the end of Part II, it will be apparent that, while the tension between the different aims of civil procedure has presented constant challenges for judges and scholars, there is no clear solution to the problem. Against this background, Part III (chapters nine to twelve) draws on the ­interview data in order to determine how judges actually deal with tensions between justice and efficiency in mega-litigation. Chapter nine identifies

11 See, eg, Penny Darbyshire, Sitting in Judgment (Hart, 2011); Alan Paterson, Final Judgment (Hart, 2013); Sharon Roach Anleu and Kathy Mack, Performing Judicial Authority in the Lower Courts (Palgrave, 2017).

8  Introduction four ­characteristics that typify the approach of the mega-litigation judge. The mega-litigation judge is active (rather than passive) in managing the case; is flexible in the approach to procedure; is creative in devising new ways of dealing with mega-­litigation; and conducts the hearing in a way which is fair to the parties. This chapter shows how each judge’s personality and experience affect that judge’s approach to mega-litigation. Chapter ten demonstrates the translation of these characteristics into practice by providing an overview of the procedural techniques used in mega-litigation. Building on this information, chapter eleven draws together the themes and information introduced in earlier chapters, in order to answer the central question of this book: how do judges in mega-litigation reconcile the aims of justice and efficiency? The interview data suggests three answers. First, judges in mega-litigation reconcile the demands of justice and efficiency by developing innovative procedures that further the ends of both justice and efficiency. Secondly, by engaging in active case management, judges ensure a sharp focus on the real issues in dispute, thus improving efficiency without compromising justice. Thirdly, when tension between justice and efficiency arises, judges endeavour to resolve this using their highly informed expert intuition. Finally, chapter twelve discusses the practical and normative implications of these conclusions.

2 Justice and Efficiency as Aims of Civil Procedure The title of this book contains several terms that cry out for explanation. What is meant by ‘justice’? What is meant by ‘efficiency’? What is meant by ‘megalitigation’? This chapter answers the first two of these questions; chapter three answers the third. The terms ‘justice’ and ‘efficiency’ are, of course, value-laden and contested. This chapter explains the way in which these terms are used in this book to describe objectives of civil procedure. The aim of this chapter is to establish that civil procedure can have different objectives, and to begin to sketch an outline of the way in which these objectives relate to one another. The objectives of civil procedure can vary depending on the perspective we adopt. Nick Armstrong contrasts two different models of civil justice system:1 the ‘dispute resolution’ model, which prioritises the private interests of the parties to litigation; and the ‘policy implementation’ model, which ‘recognises a wider public interest’2 in civil litigation. ‘Justice’ for the parties may not be the same as ‘justice’ for the general public. Drawing on these insights, this chapter identifies four ­objectives of civil procedure which will be used throughout the book: ‘justice between the parties’, ‘public justice’, ‘efficiency for the parties’ and ‘public efficiency’.

I. Justice It is axiomatic that civil procedure should aim to achieve justice. The starting point of this book is that ‘justice’, as an aim of civil procedure, means giving effect to the substantive law. This is a conventional position. For Jeremy Bentham, the ‘only defensible object’ of the ‘adjective’ (procedural) branch of law is ‘the maximization of the execution and effect given to the substantive branch of the law’.3 Taking this 1 Nick Armstrong, ‘Making Tracks’ in AAS Zuckerman and Ross Cranston (eds), Reform of Civil Procedure: Essays on ‘Access to Justice’ (Clarendon Press, 1995) 97. 2 Ibid 99. 3 Jeremy Bentham, ‘Principles of Judicial Procedure’ in John Bowring (ed), The Works of Jeremy Bentham Vol II (1843) 5, 6.

10  Justice and Efficiency as Aims of Civil Procedure as the starting point, what does justice, as an aim of civil procedure, mean for the parties to litigation and for the public?

A.  Justice between the Parties If justice means giving effect to the substantive law governing the dispute, justice for the parties must entail applying the relevant law to the facts of the case. But even from the point of view of the parties, this conception of justice seems incomplete. Adrian Zuckerman argues that time and cost, as well as the accuracy of the decision, are dimensions of justice.4 Cost and time might seem more relevant to efficiency than to justice. But if justice means giving effect to the substantive legal rights of the parties, it is not enough for the court simply to determine what those rights are, regardless of the cost or delay involved. That determination must come at such a time as to be of utility, and at a cost which is reasonable in the context of the matter. A judgment might be correct in fact and law, yet come too late to rectify the wrong that has been done.5 For example, a plaintiff who has suffered personal injury might suffer years of hardship before being ­compensated.6 Likewise, ­excessive cost can undermine the efficacy and fairness of judicial proceedings. It is not uncommon for the legal costs incurred by the parties to approach or even exceed the amount at stake in the claim. A plaintiff may make out their claim yet lose money as a result of litigation. A defendant may gain a judgment wholly in their favour, yet be left with a very large costs bill. Parties who obtain judgments in their favour yet are left with costs bills disproportionate to the amount in dispute have arguably not had their substantive legal rights upheld in any meaningful way. In short, cost and time cannot be disentangled from the aim of giving effect to the substantive law. So far we have focused on achieving a just outcome between the parties. The justice of the court process is also an aspect of justice between the parties.7 A concern for fair process is, of course, deeply embedded within the common law. Quite apart from this, a body of empirical research suggests that litigants’ satisfaction with the justice system depends on their perceptions of the fairness

4 Adrian Zuckerman, Zuckerman on Civil Procedure: Principles of Practice (Sweet and Maxwell, 2nd edn, 2006) 3–6. Zuckerman’s three-dimensional view of justice is discussed in depth in chapter five. 5 See Zuckerman, Zuckerman on Civil Procedure (ibid) 11; AAS Zuckerman, ‘Quality and Economy in Civil Procedure: The Case for Commuting Correct Judgments for Timely Judgments’ (1994) Oxford Journal of Legal Studies 353, 360. 6 See Thomas W Church, ‘A Consumer’s Perspective on the Courts’ (Second Annual Oration in Judicial Administration, delivered on 31 October 1990 at Melbourne University) 5–6. 7 The theoretical underpinnings of the importance of procedural justice are discussed in chapter five (at section IV), with reference to the work of John Rawls and Robert S Summers.

Justice  11 of the process as well as the outcome.8 Therefore, when considering justice between the parties, not only the outcome, but also the means of reaching the outcome is important. We are left with the following conception of justice between the parties: an accurate resolution of the real issues in dispute, at a reasonable cost, without undue delay, and following a fair process. On this understanding, justice between the parties is not synonymous with what the parties desire. A party to litigation might want to run their case in a particular way – for example, they might wish to tender a large number of documents. But if those documents are not essential to determining the real issues in dispute, there is no injustice in refusing that tender. Justice between the parties need not mean allowing the parties to do whatever they want.

B.  Public Justice What happens if we broaden our view to ask what justice means, not just for the parties to a case, but for other litigants and for the community in general? The starting point is, once again, that justice means giving effect to the substantive law. If we assume that the substantive law reflects the needs of the society governed by the law, it is in the interests of the whole society to have that law enforced. Civil proceedings provide an opportunity for judges ‘to perform their function of interpreting, clarifying, developing and … applying the law’.9 Furthermore, civil litigation ‘provides a public good by giving life to the rule of law’.10 In R (UNISON) v Lord Chancellor, Lord Reed delivered an impassioned rebuttal of ‘the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit’:11 At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. … In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of

8 See, eg, John Thibaut and Laurens Walker, Procedural Justice (Hillsdale, 1975); Tom R Tyler, ­‘Procedural Justice and the Courts’ (2007) 44 Court Review 26. 9 JA Jolowicz, On Civil Procedure (Cambridge University Press, 2000) 71. 10 John Sorabji, English Civil Justice after the Woolf and Jackson Reforms: A Critical Analysis (Cambridge University Press, 2014) 11. 11 R (UNISON) v Lord Chancellor [2017] UKSC 51, [67].

12  Justice and Efficiency as Aims of Civil Procedure Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.12

In the Australian context, Sir Gerard Brennan made a similar point: The settlement of disputes by legal process is a fundamental function of government in a society under the rule of law. If the function is not performed, the law is not applied and the festering sore of injustice spreads the infection of self-help. Power is then unrestrained by law. Peace and order are at risk and, sometimes, tragedy may be the consequence. Laws that are put on the statute book mock the integrity of the political process unless the beneficiaries of those laws can enforce them.13

For these reasons, it is in the interest of the whole community that courts should reach the right decisions. Similarly, everybody within a community has an interest in seeing justice done openly and according to a fair judicial process. Fair process is not just important to the parties to the case; it is a public affirmation of the rule of law. To this extent, justice for the public converges with justice for the parties. The picture becomes more complex when we start to consider access to justice. As Lord Reed and Sir Gerard Brennan intimate, the rule of law requires that the beneficiaries of legal rights be able to enforce those rights.14 At this point, the limits of a party-centric view of justice become apparent. Giving parties A and B the fullest possible opportunity to present their case, without regard to the proportion of court resources that their case consumes, might achieve justice between A and B. But it might also mean that litigants C and D face a long wait for their case to go to trial, thus undermining the utility of the judgments that C and D ultimately receive. Meanwhile, potential plaintiffs E and F, whose legal rights have been violated, decide that court waiting lists are so long that it is not worth litigating at all. On this view, a reduction in the procedural resources allocated to A and B can be justified in order to provide justice to C, D, E and F. To put it pithily, ‘a party is entitled to his day in court but not to someone else’s day in court’.15 Similarly, if litigation becomes an extremely expensive exercise, the courts may become inaccessible to many potential litigants.16 Zuckerman argues that compromises in the quality of justice in an individual case are sometimes necessary to achieve justice in a wider sense: To be able to seek redress for wrongs, citizens have to have access to the courts. However, a system of procedure that is so expensive as to place litigation beyond the reach of most citizens may be said to deny justice to the majority of the population.17 12 Ibid [68]. 13 Sir Gerard Brennan, ‘Key Issues in Judicial Administration’ (1996) 6 Journal of Judicial ­Administration 138, 140. See also Jolowicz (n 9) 71. 14 Lord Reed expands on the public importance of access to justice in R (UNISON) v Lord Chancellor [2017] UKSC 51, [69]–[85]. 15 United Motors Retail Ltd v Australian Guarantee Corporation Ltd (1991) 58 SASR 156, 158 (King CJ). 16 See Productivity Commission, Access to Justice Arrangements: Draft Report (2014) ch 3. 17 Zuckerman, ‘Quality and Economy in Civil Procedure’ (n 5) 361 (citations omitted, emphasis added).

Efficiency  13 A system does not achieve the aim of giving effect to the substantive law if it delivers accurate judgments to a small number of parties but provides no redress at all in the majority of cases. From this point of view it may sometimes be ‘just’ to compromise justice between the parties in a particular case for the sake of justice for the community.

II. Efficiency This book does not adopt the specific technical meanings of efficiency used in the field of economics. Rather, it uses a more pragmatic concept: efficiency is, essentially, the minimisation of cost and delay. Just as our assessment of ‘justice’ depends on whether we consider it from the point of view of the parties or that of the public, so too with ‘efficiency’.

A.  Efficiency for the Parties Efficiency for the parties to a case can be explained briefly. For the purposes of this book, ‘efficiency’ from a party perspective means minimising the cost and time spent resolving the dispute. These two aspects of efficiency may conflict. The fastest way of resolving a dispute may not always be the cheapest. For instance, while intensive judicial case management might hasten the resolution of a matter (whether by trial or settlement), it may also increase the labour required and, therefore, the costs incurred by the parties.18 In general, however, consideration of efficiency from the perspective of the parties will involve a relatively straightforward enquiry about the costs incurred by the parties. As explained earlier in this chapter, cost and time are aspects of doing justice between the parties. Excessive cost and delay may render a determination of legal rights practically meaningless. But even if cost and delay do not reach this level, efficiency is still desirable from the parties’ point of view. A plaintiff may have a claim that is worth pursuing even if takes a lot of time and money; but nevertheless the plaintiff would rather it took less time and money.

B.  Public Efficiency In this book, the term ‘public efficiency’ will be used to refer to the use of the resources of the civil justice system. An efficient civil justice system, from the point of view of the public, will produce its outputs (finalised cases) at minimal 18 See, eg, James S Kakalik et al, Just, Speedy and Inexpensive? An Evaluation of Judicial Case ­Management under the Civil Justice Reform Act (RAND, 1996).

14  Justice and Efficiency as Aims of Civil Procedure cost to the public and at maximum speed. To state the proposition is to make it obvious that this cannot be the only goal of civil procedure. As discussed earlier, there is a strong public interest in the justice of the outcomes and process. But nor can public efficiency be ignored. Every member of the public has an interest in the way courts – as taxpayerfunded institutions – are run, for the same reason that we all have an interest in preventing social security fraud, or monitoring the travel expenses of members of parliament. Public money spent on courts is money not spent on health, education, policing and other legitimate government objectives. For this reason, there is a public interest in courts operating efficiently. This aspect of the public interest is distinct from that discussed above under the heading ‘public justice’. We could say it is ‘unjust’ for taxpayers’ money to be used on elaborate, time-consuming court procedures. But to say this is to invoke a colloquial concept of ‘justice’ that is quite different from ‘justice’ in the sense of giving effect to the substantive law. Throughout this book, a distinction between ‘public justice’ and ‘public efficiency’ is maintained. Unavoidably, courts rely upon taxpayer funding. This funding will never be unlimited. As important as a justice system is to a civilised society, there will always be other, equally deserving, claims on the public purse. Zuckerman argues that litigants are not entitled to claim the best possible court adjudication system regardless of how much it costs. It does not follow that just because we have a legitimate claim that the state should protect our rights we also have a legitimate claim to the best possible law enforcement system regardless of expense. As a citizen, I am no more entitled to the best possible system of justice than I am to the best possible health treatment.19

Ronald Dworkin agrees there are limits to what governments can be expected to invest in the court system. Notwithstanding the importance he places on giving effect to legal rights,20 Dworkin rejects the notion that a society must put the aim of achieving the highest possible level of accuracy in litigation ‘lexically prior to all other needs’: a society governed by that constraint … could never devote public funds to amenities like improvements to the highway system, for example, so long as any further expense on [court] process could improve its accuracy. Our own society plainly does not observe that stricture, and most people would think it too severe.21

19 Adrian Zuckerman, ‘Litigation Management under the CPR: A Poorly-Used Management Infrastructure’ in Deirdre Dwyer (ed), The Civil Procedure Rules Ten Years On (Oxford University Press, 2009) 89, 91. 20 See, eg, Ronald Dworkin, Taking Rights Seriously (Gerald Duckworth, 1978). Dworkin’s ­contribution to the debate on justice and efficiency in procedure is discussed in chapter five. 21 Ronald Dworkin, A Matter of Principle (Clarendon Press, 1986) 84. While Dworkin is dealing here with the criminal process, the point holds for civil process. If anything, it is harder to justify devoting funds to increasing the accuracy of the civil process, in which liberty is not at stake.

Relationship between Party and Public Perspectives on Justice and Efficiency  15 What follows from accepting that public efficiency is a legitimate objective of civil procedure? First, responding to challenges within the court system by arguing that governments need to provide more funding to courts is neither realistic nor helpful. Funding will always be limited. Secondly – and crucially, for this book – because resources are finite, any step that commits judicial resources to one particular matter makes those resources unavailable to other litigants within the system.

III.  Relationship between Party and Public Perspectives on Justice and Efficiency In this chapter so far, the objectives of civil procedure have been sorted into four groups: justice between the parties; public justice; party efficiency; and public e­ fficiency. Each, it has been argued, can be invoked as a legitimate objective of civil procedure. This book will explore the way in which these objectives interact. At this point, some preliminary observations about that interaction are necessary. These four objectives are all incorporated, to some degree, within contemporary approaches to civil procedure.22 As will be seen later in this book, the acceptance and prominence of each objective has varied with time and context. An influential view throughout much of the twentieth century was that procedure should aim to do justice between the parties, with any other aims – if acknowledged at all – very much subservient to this aim.23 A corollary of this emphasis on justice between the parties is that some cost and delay is inevitable if justice is to be done. Writing extrajudicially about the danger of imposing performance measurement on courts, former New South Wales Chief Justice James Spigelman said that ‘[s]ome things take time: justice is one of them’:24 One characteristic of our administration of justice is its inefficiency when compared with some other systems of decision-making. There is no doubt that a much greater volume of cases could be handled by a specific number of judges if they could sit in camera, dispense with the presumption of innocence, not be constrained by obligations of procedural fairness or the need to provide a manifestly fair trial, act on the basis that no one had any rights and not have to publish reasons for their decisions. Even greater ‘efficiency’ would be quickly apparent if judges had made up their minds before the cases began. Our system of justice is not the most efficient mode of dispute resolution. Nor is demo­ cracy the most efficient mode of government. We have deliberately chosen inefficient ways of decision-making in the law in order to protect rights and freedoms.25 22 See the discussion in chapters six to eight. 23 See the discussion in chapter six, section II. 24 Chief Justice JJ Spigelman, ‘Economic Rationalism and the Law’ (2001) 24 University of New South Wales Law Journal 200, 203. 25 Ibid 204 (emphasis added).

16  Justice and Efficiency as Aims of Civil Procedure Similarly, in the English context, Conrad Dehn argues that complaints about cost and delay will be made about ‘any legal system which goes beyond palm tree justice and tries to ascertain the truth of the facts in dispute and the correct application of the relevant law’.26 Millett LJ in the English Court of Appeal observed that ‘[i]t is easy to dispense injustice quickly and cheaply, but it is better to do justice even if it takes a little longer and costs a little more’.27 On this view, no apology should be made for the expensive, time-consuming, labour-intensive procedures of our system; they exist in order to achieve justice – at least for the parties. There are several responses to these arguments. First, as pointed out above, cost and time are dimensions of justice: arguably, justice is not done if court proceedings are so costly or prolonged as to deprive the remedy of practical utility. Secondly, the assumption that more elaborate procedures increase the chances of reaching the ‘right’ result can be challenged. A costly, time-consuming procedure may contribute nothing to the resolution of the case, or there may be a more efficient way of gaining the same benefit. Parties to litigation may take procedural steps for tactical reasons (such as a desire to ‘inflict costs’28 on opponents), rather than because the step will help to resolve the dispute on its merits. Finally, doing justice between the parties without regard to cost and time can reduce access to justice for other litigants. For all these reasons, inefficiency should not be accepted as the inevitable consequence of doing justice. That is not to deny the possibility of tension between the various objectives. Indeed, the purpose of this book is to determine how judges navigate that tension in the context of mega-litigation. Acknowledging that civil procedure may have different objectives can help to untangle some of the analysis about civil procedure. It is common to describe civil procedure as having a single objective, albeit with multiple components. For example, three members of Australia’s High Court observed that: What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.29

This statement invokes three of the objectives identified in this chapter: justice for the parties, justice for the public (‘the claims of other litigants’) and public efficiency (‘efficient use of court resources’). But by suggesting that there is no injustice in pursuing the latter two objectives at the expense of the first,

26 Conrad Dehn, ‘The Woolf Report: Against the Public Interest’ in AAS Zuckerman and Ross Cranston (eds), Reform of Civil Procedure: Essays on ‘Access to Justice’ (Clarendon Press, 1995) 149, 163. 27 Gale v Superdrug Stores plc [1996] 3 All ER 468, 477–78, [1996] 1 WLR 1089, 1098 (Millett LJ). 28 Hugh Gravelle, ‘Regulating the Market for Civil Justice’ in AAS Zuckerman and Ross Cranston (eds), Reform of Civil Procedure: Essays on ‘Access to Justice’ (Clarendon Press, 1995) 279, 296. 29 Sali v SPC Ltd (1993) 67 ALJR 841, 844 (Brennan, Deane and McHugh JJ).

Conclusion  17 s­ tatements such as this tend to gloss over the tensions inherent in the relationship between the different objectives. John Sorabji has pointed out the potential for misunderstanding when different conceptions of ‘justice’ in civil procedure ‘use the same language’ but ‘are markedly different and serve different aims’.30 The aim of this book, in identifying the different objectives of civil procedure, is to facilitate a frank analysis of the trade-offs between these objectives that have been, are being, and should be implemented in common law systems.

IV. Conclusion The relationship between justice and efficiency in civil procedure, viewed from the perspectives of parties to litigation and of the public, is not straightforward. One view is that inefficiency is the price we must pay for doing justice between the parties. If this were so, this book would be entitled ‘Efficiency versus Justice in Mega-Litigation’. The question would be when – if ever – courts could legitimately compromise justice for the sake of efficiency. This remains part of the question. But the reality is more complicated. Efficiency is not always opposed to justice. A court determination which comes at too great a cost may not, substantively, do justice between the parties. Doing justice between the parties may work an injustice on the public if as a result access to justice is reduced. The aims of efficiency and justice in civil procedure will sometimes conflict, but at other times they will be inseparable. The next two chapters introduce the practical setting in which the relationship between justice and efficiency will play out in this book: mega-litigation.



30 Sorabji

(n 10) 99.

3 What is Mega-Litigation? The previous chapter explained the concepts of ‘justice’ and ‘efficiency’ for the purposes of this book. This chapter addresses a further question: what is ‘mega-litigation’? Mega-litigation is ‘easier to recognise than to define’.1 Various labels have been applied to the same phenomenon: ‘mega-litigation’,2 ‘supercase’,3 ‘heavy and complex’ case,4 and ‘long and complex’ case.5 It would be neither easy nor useful to develop a rigid definition which would conclusively rule actions either in or out of the class of ‘mega-litigation’. Nonetheless, for the purposes of this book it is necessary to outline, in general terms, the type of case that qualifies as megalitigation. To this end, this chapter develops a working definition – or, perhaps more ­accurately, description – of mega-litigation for use in this book. This description incorporates several criteria, none of which is determinative: hearing time, number of parties, amount at stake, resources of the parties, and the complexity of the case. These criteria are drawn from the qualitative interviews conducted for the research on which this book is based, as well as from academic literature and case law. The chapter also considers the related issue of the causes (as opposed to the characteristics) of mega-litigation.

I.  Towards a Definition of Mega-Litigation This is not the first attempt to define the phenomenon that might be described as ‘mega-litigation’. The Long Trials Working Party in the English Commercial Court, set up in direct response to two high-profile mega-litigation matters,6 identified 1 Judiciary of England and Wales, Report and Recommendation of the Commercial Court Long Trials Working Party (December 2007) (‘Long Trials Working Party Report’) 15 [26]. 2 See, eg, Acting Justice of Appeal Ronald Sackville, ‘Mega-Lit: Tangible Consequences Flow from Complex Case Management’ (2010) Law Society Journal 47; Richard L Marcus, ‘Reassessing the Magnetic Pull of Megacases on Procedure’ (2001) 51 DePaul Law Review 457. 3 See, eg, Sir Anthony Clarke MR, ‘The Supercase – Problems and Solutions: Reflections on BCCI and Equitable Life’ (KPMG Forensic’s Annual Law Lecture 2007, London, 29 March 2007). 4 See, eg, Long Trials Working Party Report (n 1) 15 [26]. 5 See, eg, Acting Justice Ronald Sackville, ‘Mega-Litigation: Towards a New Approach’ (2008) 8 The Judicial Review 89; Long Trials Working Party Report (n 1) 15 [26]. 6 Long Trials Working Party Report (n 1) 13–14 [21]. The two matters were the BCCI and Equitable Life cases, both of which were discontinued before trial. The history of both cases is described in Sir Anthony Clarke MR, ‘The Supercase – Problems and Solutions: Reflections on BCCI and Equitable Life’ (KPMG Forensic’s Annual Law Lecture 2007, London, 29 March 2007).

Towards a Definition of Mega-Litigation  19 the following factors as indicators of ‘long and complex’, ‘heavy and complex’ or ‘supercase’ litigation: ‘[t]he amount at stake in the litigation, the number of parties involved, the potential length of the trial, the number of issues raised and the complexity of the legal or technical issues’.7 The Working Party concluded that it ‘could not be prescriptive’ about the definition.8 In Australia, the leading statement on the meaning of the term ‘mega-litigation’ is that of Sackville J in the C7 case.9 His Honour described mega-litigation as civil litigation, usually involving multiple and separately represented parties, that consumes many months of court time and generates vast quantities of documentation in paper or electronic form. An invariable characteristic of mega-litigation is that it imposes a very large burden, not only on the parties, but on the court system and, through that system, the community.10

These two descriptions identify five factors that may be used to identify megalitigation: high stakes, multiple parties, lengthy hearing time, legal and factual complexity, and a large volume of documentation. These factors provide a logical starting point for my description of mega-litigation.

A.  High Stakes The amount at stake in litigation is an obvious indicator of mega-litigation.11 It may make good economic sense for parties to invest large amounts of time and money in litigation if they stand to gain or lose an even greater amount. Western Australian Chief Justice Wayne Martin explained in an interview: The problem in the mega-litigation case is that there is usually so much money involved that cost is no object to the parties. … The normal rational constraints that apply to normal litigants [mean that if] the case is worth let’s say $2 million, rational litigants will not spend more than $500,000 on their legal costs pursuing a $2 million case and issue. If the amount involved is $2 billion, then rational litigants will spend up to $500 million each.

In the Bell Group litigation in the Supreme Court of Western Australia, for instance, the plaintiffs’ party and party costs after the trial were around $82 million;12 a huge sum of money but, as it turned out, a good investment – they were awarded over $1.6 billion plus interest. Mega-litigation cases are often disputes about entitlement to very large sums of money. In class actions or group litigation, the amount that each member of the group stands to gain may be quite small; but the overall stakes may be very high, making it rational for the parties to invest large sums in the litigation. 7 Long Trials Working Party Report (n 1) 15 [26]. 8 Ibid 15 [26]. 9 Seven Network Ltd v News Ltd [2007] FCA 1062. 10 Ibid [1]. 11 Michael Legg, Case Management and Complex Civil Litigation (Federation Press, 2011) 19. 12 See Westpac Banking Corporation v Bell Group Ltd (in liq) [2009] WASCA 166, [3]. The legal costs for the entire dispute have been reported as $500 million: Richard Gluyas, ‘Banks in Bell Group ­Settlement’, The Australian, 18 September 2013.

20  What is Mega-Litigation? How high must the stakes be for a case to qualify as mega-litigation? Any bright-line monetary cut-off point will inevitably be arbitrary in some circumstances. A survey of cases generally accepted as mega-litigation, and the interviews for this project, suggest that a value of at least around £50 million13 or $80 million is indicative of mega-litigation. However, this is not a rigid cut-off point. Nor is money alone an adequate indicator of what is at stake. One participant in the interviews pointed out that some cases that arguably fall within the category of mega-litigation may carry very significant non-monetary consequences.14 For example, a case may expose government action that resulted in human rights violations.15 While such cases may involve significant amounts of money, the symbolic value of public truth-telling and vindication may be even higher. In other cases, the stakes may be more personal: an individual’s reputation and professional future may turn on the result.16 Or the stakes may be high, but not easily measurable in financial terms. In Australia, claims by Aboriginal and Torres Strait Islander peoples to native title to land often give rise to extremely complex, long-running litigation; yet, because native title rights are inalienable, it is difficult to put a dollar value on these cases. Clearly, high stakes come in different varieties. To further complicate matters, on their own high stakes do not necessarily make mega-litigation. It is possible to have a straightforward claim for a large sum of money that resolves swiftly ­without complication. And several interview participants said it was possible to have ­mega-litigation without huge sums of money at stake.17 In sum, high stakes of one kind or another appear to be a frequent c­ haracteristic of mega-litigation. But high stakes, without more, do not make mega-litigation.

B.  Multiple Parties Mega-litigation often involves multiple parties. The C7 case, for example, involved two applicants and 20 respondents, who divided into 10 separately represented groups. For some interview participants, the number of parties was a major factor contributing to the size and complexity of the litigation.18 One participant 13 This figure has been chosen, in part, because it is the minimum amount for which a claim may be made in the Financial List of the High Court of England and Wales: CPR r 63A.1(2)(a). 14 Participant E11 interview. 15 Examples include Trevorrow v State of South Australia (No 5) (2007) 98 SASR 136 (concerning the liability of the government of South Australia for the damage suffered by a member of the ‘stolen generation’, ie an Aboriginal person forcibly removed from his family as a child); and the claim by 40,000 survivors of the Mau Mau uprising alleging abuse, torture and wrongful detention by British officials. This case was before the High Court of England and Wales at the time of writing. 16 For example, Australian Securities and Investments Commission v Rich (2009) 236 FLR 1, an iconic case of Australian mega-litigation, was an action brought by the corporate regulator against directors of a defunct telecommunications company for breaches of corporation law. The outcome of the case would affect the former directors’ business reputation and entitlement to hold corporate office in future. 17 Participant E6, Participant E10 and Participant E11 interviews. 18 Michael Black, Ray Finkelstein and Participant E6 interviews.

Towards a Definition of Mega-Litigation  21 explained how the number of parties interacted with other factors to create ­mega-litigation: a greater number of parties ‘almost inevitably’ increased ‘the number and potential complexity of the issues and the length of the court time’.19 And yet it is possible to have mega-litigation involving only two or three parties. Berezovsky v Abramovich,20 a dispute between two Russian oligarchs, is an example.21 Once again, then, the number of parties emerges as an important but not decisive factor in defining mega-litigation: it is possible to have megalitigation without a large number of separately represented parties.

C.  Hearing Time Hearing time is one indicator of mega-litigation. Some notorious Australian mega-litigation involved extraordinarily long trials: 404 days in Bell and 471 days in Duke Group.22 Interview participants, particularly those in Australia, tended to use the number of hearing days as a measure of the magnitude of the litigation. The 200-day trial is an obvious case of mega-litigation; indeed, so is the 100-day trial. But participants also gave examples of trials in the range of 40–80 days which they would put in the mega-litigation class. It was difficult to identify a cut-off for the number of hearing days that would qualify a matter as mega-litigation. There was a difference between the hearing times reported by Australian and English judges. In general, very long (100-day plus) cases seemed more common in Australia than in the courts of England and Wales. Some English participants attributed their relatively short trial times to the efficiency of their procedures, particularly in the Commercial Court.23 There are other reasons why the length of the trial is an imperfect measure of the magnitude of litigation. As we shall see throughout this book, most complex cases are subject to judicial case management – often intensive case management – prior to trial. This may mean that the trial is preceded by many directions ­hearings, management conferences and interlocutory arguments; a large amount of time may have been spent in court before the trial begins. Former South Australian Supreme Court judge, David Bleby, noted that mega-litigation not only occupies a large amount of trial time but occupies a lot of management time too, sometimes for several years. And not … week to week or month to month management but quite often vigorously contested interlocutory applications.24 19 Participant A9 interview. 20 [2012] EWHC 2463. 21 Australian examples of mega-litigation involving only two or three parties include Australian ­Securities and Investments Commission v Rich (2009) 236 FLR 1 and Alstom Ltd v Yokogawa Australia Pty Ltd [2012] SASC 49. 22 Duke Group Ltd (in liq) v Pilmer (1998) 144 FLR 1. 23 Participant E5 and Sir Richard Aikens interviews. 24 For example, there were 67 reported interlocutory judgments in the ASIC v Rich proceedings: Australian Securities and Investments Commission v Rich (2009) 236 FLR 1, 22 [28].

22  What is Mega-Litigation? Added to this are the many hours a judge may spend out of court reading and preparing for management hearings. Because effective pre-trial case management should result in a much more efficient trial, trial time is an inadequate measure of the burden that a case places upon the court. One interview participant identified a distinct category of case that could be described as mega-litigation although it does not consume months of court time. This participant had heard several complex, high-stakes commercial disputes that were ‘brought to court with a high degree of haste so as to achieve a very early outcome’.25 In this case, the ‘strain on the system’ came not from the length of the litigation but from its ‘intensity’: We have cases … which have mountains of paper to start with but come to court very swiftly and require urgent resolution involving hundreds of millions of dollars, for significant commercial issues, and whilst they may not take weeks or months I still think those fall within, properly speaking, a category of mega-litigation where there’s huge resources committed to them by the parties …

Hearing time at trial can also be an inaccurate measure of the magnitude of litigation because many large, complex cases do not proceed to judgment. ­ Some well-known examples of mega-litigation have either settled,26 been ­discontinued,27 or been dismissed prior to the end of the trial.28 These cases can consume vast amounts of court and party resources, despite a relatively short, or non-existent, trial. In sum, the length of the trial is an important, but not conclusive, factor in developing a definition of ‘mega-litigation’. A very long trial will be a strong ­indication that a case falls within the ‘mega-litigation’ category. But a long trial is not a necessary factor; it is possible to have mega-litigation without a long trial.

D.  Number of Documents The number of documents involved in mega-litigation is often staggering. There were 4,000 pages of written submissions in Berezovsky v Abramovich.29 The ­pleadings in C7 ran to 1028 pages.30 In the Bell Group trial, 86,340 documents were tendered.31 Small wonder, then, that the volume of documents involved are sometimes cited as a key characteristic of mega-litigation.32 25 Participant A6 interview. 26 For example, the Centro litigation in Victoria in 2012 (see Kirby v Centro Properties Ltd (No 6) [2012] FCA 650). 27 For example, the BCCI/Three Rivers case in the UK (see Adrian Zuckerman, ‘A Colossal Wreck – The BCCI-Three Rivers Litigation’ (2006) 25 Civil Justice Quarterly 287). 28 See, eg, Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271. 29 Berezovsky v Abramovich [2012] EWHC 2463, [34]. 30 Seven Network Ltd v News Ltd [2007] FCA 1062, [16]. 31 Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1; [2008] WASC 239, [956]. 32 Seven Network Ltd v News Ltd [2007] FCA 1062, [1] (Sackville J).

Towards a Definition of Mega-Litigation  23 My view is that the amount of documentation involved in a case is better seen as a symptom, rather than a constitutive feature, of mega-litigation. One interview participant33 thought it unwise to place too much emphasis on the volume of paper in classifying a case as mega-litigation. It was possible to have very long and complex litigation that did not involve large volumes of documentation. The presence of large numbers of documents may be the result of other factors: complex or wide-ranging factual issues; well-resourced parties prepared to pour large sums of money into the litigation; lawyers taking an exceptionally thorough approach. It is a combination of factors such as these, rather than simply the ­presence of a large number of documents, that make a matter mega-litigation.

E. Complexity One characteristic which seems common to all cases of mega-litigation is the complexity of the factual issues, the legal issues, or both. Many interview ­participants identified the number and complexity of legal and factual issues as a feature of mega-litigation.34 Mega-litigation can involve the resolution of unsettled questions of law. One interview participant identified the ‘importance of the issues’ as a major factor:35 if a case raises a novel legal issue of ongoing significance to the parties, the case is likely to be hard-fought, with extensive legal argument on both sides. But legal complexity does not, on its own, create mega-litigation. The most complex legal questions are regularly determined by appellate courts following hearings of one day or less. Factual, rather than legal, complexity is likely to mark a matter out as megalitigation. Factual complexity is inseparable from some of the factors already discussed. The involvement of multiple parties creates complexity. In Bell Group, for instance, there were effectively ‘21 separate trials’36 against 21 separate ­defendants. There is also a connection between the complexity of the factual issues and the volume of documents. David Harper of the Supreme Court of Victoria explained that cases reach the proportions of mega-litigation because of: the volume of evidence, which very often is connected with the complexity of the issues. If there are a large number of issues which can only be dealt with or determined on the basis of a large quantity of evidence then necessarily that evidence has to be produced or called. Sometimes the legal issue can be quite straightforward but nevertheless because there is a very heavy contest about what happened, the evidence on each side is v­ oluminous … 33 Ray Finkelstein interview. 34 Michael Black, David Bleby, Ray Finkelstein, David Harper, Peter McClellan, Neville Owen, ­Participant A8, Participant A9, Participant E6 and Participant E8 interviews. 35 Participant A9 interview. 36 Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1, [2008] WASC 239, [5], [954].

24  What is Mega-Litigation? If a case centres on the failure of a significant commercial venture, it can mean both that the stakes are high and that the task of unravelling the web of commercial relationships underlying the dispute is extremely complex. In Australian ­Securities and Investments Commission (ASIC) v Rich, for example, the facts in dispute included the financial circumstances of each of the companies in a large multinational group, spanning eight countries and employing over 3,000 people, over a period of four months. This factual inquiry made for an extremely wideranging evidentiary case.37

II.  Causes of Mega-Litigation So far, the discussion in this chapter has outlined the characteristics of megalitigation. To fill in the picture, the causes of mega-litigation must also be considered. We will see that there is a close relationship between the characteristics of mega-litigation and its social, legal and cultural causes. Five factors contributing to mega-litigation emerge from the literature and the interview data. These factors are the complexity of commercial life; the ease with which technology allows documents to be created; the availability of funding for litigation; the content of the substantive law; and the culture of the legal profession.

A.  Complexity of Commercial Life Interview participants and commentators alike identified the ­ complexity of modern commercial life as a cause of mega-litigation.38 One interview participant said: [The economy is different] from what it used to be. People have more money, there’s a much greater, much larger economy. Therefore much greater losses are suffered by groups and by businesses.39

The scale on which commercial transactions are conducted means that the failure of a business venture, or the breach of an agreement, creates a dispute with very high stakes.40 The collapse of a business empire can echo in litigation conducted many years after the event. Cases arising out of the late 1980s crash continued well into the 2000s,41 and the global financial crisis of the late 2000s might be similarly productive of long-running litigation. 37 Austin J described the nature of ASIC’s case as ‘by far the single biggest contributing factor to the length of the hearing’: Australian Securities and Investments Commission v Rich (2009) 236 FLR 1, 21. 38 David Harper, Robert McDougall and Participant A5 interviews; Legg (n 11) 19; Sackville (n 5) 91. 39 Participant E3 interview. 40 See Sackville (n 5) 91. 41 Bell Group, which concerned the events of 1989 and 1990, continued well into the second decade of the twenty-first century.

Causes of Mega-Litigation  25 Complex business dealings create factual and legal complexity in resulting litigation. Transactions embodied in intricate legal documents throw up novel legal issues. The failure of a multi-party agreement may require scrutiny, in multiparty litigation, of the relationship between each of the parties. One participant pointed out that the nature of modern manufacturing, which enables a product to be used by millions of individuals, creates the possibility of massive product liability cases.42 Some cases of mega-litigation have involved the failure of corporate groups – a ubiquitous feature of modern business.43 Unravelling the relationships between the different components of the group makes for a wide-ranging factual enquiry. Litigation involving a corporate group generally involves multiple parties (as each member of the group has separate legal personality), although if the companies in the group share common interests they may share representation. Globalisation is another feature of modern commerce. Corporate groups may have members in different countries, and virtually all major companies trade ­internationally. Mega-litigation with an international element is likely to feature legal complexity in the form of foreign law, or choice-of-law issues. There are logistical problems in hearing a case when some of the key players – parties, witnesses or decision-makers within a corporate party – are located overseas. These logistical problems are quite different for Australian and English cases. It may be prohibitively expensive and impractical to bring a person to Australia for the duration of a mega-litigation trial. Time zone differences may make it impracticable to take evidence by video link to another country, and this process is neither cheap nor failsafe.44 Amazingly, in some cases the most convenient course is for the court, including a judge and several staff, to hear the case in another country for several weeks.45 In the courts of England and Wales, the issues of globalisation affect megalitigation differently. London is a global centre for commercial activity, including commercial litigation. In the Commercial Court, where most mega-litigation occurs, over 70 per cent of litigants are foreign.46 There is much less difficulty in having key individuals physically present in the courtroom, if only because they are likely to be based in the same hemisphere (and quite possibly the same city) as the court. But the frequency of international litigation brings its own challenges.

42 Participant E1 interview. 43 Including Australian Securities and Investments Commission v Rich, the Bell Group litigation, and Duke Group Ltd (In liq) v Pilmer (1998) 144 FLR 1. 44 For a discussion of the practical difficulties in taking evidence by video link, see Australian ­Securities and Investments Commission v Rich (2004) 49 ACSR 578, 581–89. 45 For an illuminating discussion of the reasoning that leads to the decision to relocate to another country, see Australian Securities and Investments Commission v Rich (ibid). 46 Portland Communications, Who Uses the Commercial Court? – 2017 https://portland-­ communications.com/publications/who-uses-the-commercial-court-2017/. Earlier studies put the figure above 80%: Eva Lein et al, Factors Influencing International Litigants’ Decisions to Bring ­Commercial Claims to the London Based Courts (Ministry of Justice Analytical Series, 2015) 10.

26  What is Mega-Litigation? These include the need to provide translation services for witnesses and parties; the application of foreign law; and the taking of evidence from witnesses out of the jurisdiction via video link. One Commercial Court judge explained the difficulties of dealing with questions of foreign law: Because we have people who come to the Commercial Court even though the dispute itself has nothing to do with England or Wales, quite often there will be quite esoteric questions of foreign law. And you know the way we go about this: we treat it as a question of fact. And poor old first instance judge has to form a view about what the highest court in the foreign country would decide to be the law. And trying to make an assessment of that can involve really quite difficult concepts and a lot of time taken up with foreign lawyers giving evidence and being questioned about their particular analysis. The way I dealt with that in the past is I have quite often insisted that, before the foreign lawyers give evidence, I have at least two days in which to read through not just their reports but the decisions that they refer to.47

The complexity of commercial life also means that significant commercial litigation usually requires ‘elaborate expert evidence’.48 As Michael Legg points out, mega-litigation commonly involves (a) evidence as to technical or scientific issues in intellectual property cases or product liability claims; (b) evidence dealing with disputed economic issues, such as the definition of markets in competition cases; and (c) evidence from accountants or financial or industry experts in claims for damages.49

Expert evidence is, by its nature, expensive to obtain and difficult to understand. In mega-litigation it also tends to be voluminous and productive of arguments about admissibility.

B.  Technology and Documents As discussed above, that a case involves a large number of documents ought not to form part of the definition of mega-litigation. But the proliferation of documents resulting from the use of technology may be a cause of mega-litigation. It can make discovery a massively time-consuming and expensive task for the parties. It also increases the work of judges, who must navigate their way through a ‘blizzard of paper’.50



47 Participant 48 Legg 49 Ibid.

E12 interview. (n 11) 95.

50 Federal

Court of Australia, Case Management Handbook (13 October 2011) [10.36].

Causes of Mega-Litigation  27 New South Wales Court of Appeal judge, Peter McClellan, reflected on the changes he had seen during his career: When I started at the Bar you rarely got a brief in a spring-back binder. That was rare. Now of course you have trolleys … I mean, you haven’t got a decent case in Sydney unless it’s a two-trolley case – and maybe more.51

Other interview participants reported similar increases in the number of ­documents involved in litigation.52 They put this down to the ease with which documents can be created and replicated using modern technology.53 A conversation that takes place via email creates a string of electronic documents. A finalised agreement may be preceded by a series of edited drafts. Multiple copies of the same document may be held by different people within an organisation. Justice Ken Hayne of the High Court of Australia observed, extrajudicially, that the ease with which electronic documents can be shared has led to something of an abdication of responsibility, on the part of lawyers, for sorting and sifting the documents that reach the court: Now counsel can have everything available on a single disc or memory stick. And most of what appears on that disc or that stick might have some relevance to the issues … So why choose between the material that can be compressed into this single record? Why not give it all to the judge and see what he or she makes of it? If it is not immediately important, it can all be described as ‘useful’ background material.54

Some interview participants reported experiences that mirrored Hayne’s concerns. One described the indiscriminate use of document databases: [The parties are] quite willing just to kind of dump databases on each other. And that then kind of escalates, and you’ve had tens of thousands of pages worth of disclosure, and nobody’s actually looking at it, nobody’s getting to grips with it, nobody’s addressed their minds to what issue in the case it goes to or how it’s going to be presented.55

C.  Funding Available to Litigants As mentioned earlier in this chapter, mega-litigation is likely to flourish when the parties are willing to spend vast sums of money on the litigation. The parties may be large corporations, or prosperous individuals with massive resources at their disposal. Additionally, the rise of litigation funding in recent years has made the

51 See also Justice Steven Rares, ‘What Is a Quality Judiciary?’ (2011) 20 Journal of Judicial ­Administration 133, 141. 52 Robert McDougall and Participant A15 interviews. 53 Participant E9 interview. For similar observations, see Justice Peter Vickery, ‘Managing the Paper: Taming the Leviathan’ (2012) 22 Journal of Judicial Administration 51, 52–3, 65–8. 54 Justice Kenneth Hayne, ‘The Vanishing Trial’ (Paper delivered at Supreme and Federal Courts Judges Conference, Sydney, 23 January 2008) 19–20. 55 Participant E6 interview.

28  What is Mega-Litigation? resources necessary to participate in large-scale litigation available to a greater number of corporations and individuals. Interview participants identified the increasing availability of litigation funding as one cause of mega-litigation.56 Litigation funding is an arrangement under which a litigation funder agrees to pay the legal costs of a plaintiff ’s action, and to bear the risk of paying the other side’s costs if the action fails, in return for an agreed share of the proceeds if the action is successful. In Australia, such arrangements were traditionally impermissible, as they breached the common law prohibitions on maintenance and champerty.57 Since the mid-1990s, insolvency practitioners have been subject to an exception to these prohibitions,58 and litigation funding companies have been formed to take advantage of this exception. Other statutory59 and common law60 developments have effectively put an end to the doctrines of maintenance and champerty. As a result, the market for litigation funding has expanded into class actions and single plaintiff lawsuits.61 In England, the Criminal Law Act 1967 abolished the civil62 and criminal63 liability for maintenance and champerty, but left open the possibility that a litigation funding agreement could be unenforceable if it was contrary to public policy.64 In R (Factortame Ltd) v Secretary of State for Transport, Local Government and the Regions (No 8),65 the Court of Appeal gave a relatively narrow conception to the relevant public policy grounds. An agreement would be contrary to public policy where, for example, the agreement might tempt the third party funder ‘for his personal gain to inflame the damages, to suppress evidence, to suborn witnesses or otherwise to undermine the ends of justice’.66 On this view, the usual arrangements entered into with reputable litigation funding firms would not be contrary to public policy. Indeed, in Arkin v Borchard Lines Ltd,67 Lord Phillips MR acknowledged that litigation funding provided a public

56 Participant A5, Participant A16 and Participant E7 interviews. 57 See Damian Grave, Ken Adams and Jason Betts, Class Actions in Australia (Lawbook, 2nd edn, 2012) 786, 789–90 [17.140]; Standing Committee of Attorneys-General, ‘Litigation Funding in Australia’ (Discussion Paper, May 2006) 4. 58 See Re Movitor Pty Ltd (in liq) (1996) 64 FCR 380; Damian Grave, Ken Adams and Jason Betts, Class Actions in Australia (Lawbook, 2nd edn, 2012) 786, 790–91 [17.150]; Corporations Act 2001 (Cth) ss 420(2)(b) and (g), 477(2)(c). 59 See, eg, Maintenance, Champerty and Barratry Abolition Act 1993 (NSW); Criminal Law ­Consolidation Act 1935 (SA) sch 11 (inserted in 1992); Civil Law (Wrongs) Act 2002 (ACT) s 221; Crimes Act 1958 (Vic) s 322A; Wrongs Act 1958 (Vic) s 32 (inserted in 1969). 60 See Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386; Mobil Oil Australia Pty Ltd v Trendlen Pty Ltd (2006) 80 ALJR 1503. 61 Law Council of Australia, ‘Regulation of Third Party Litigation Funding in Australia’ (Position Paper, June 2011), 4 [2]. 62 Criminal Law Act 1967 (UK) s 14(1). 63 Ibid s 13. 64 Ibid s 14(2). 65 R (Factortame Ltd) v Secretary of State for Transport, Local Government and the Regions (No 8) [2002] EWCA (Civ) 932, [2003] QB 381. 66 Ibid 400 (Lord Phillips). 67 Arkin v Borchard Lines Ltd [2005] EWCA (Civ) 655.

Causes of Mega-Litigation  29 benefit by facilitating access to justice for impecunious litigants, albeit while exposing litigation funders to liability for costs.68 Litigation funding provides access to justice to plaintiffs who would not otherwise be able to afford to litigate.69 For this reason, litigation funders often fund group litigation.70 Litigation funding can also be used as a risk management tool by companies and individuals who could afford to litigate but would otherwise judge the exercise too uncertain. This means that some very large claims that, but for litigation funding, would be neglected, are pursued.

D.  Substantive Law Writing extrajudicially in 1995, the Chief Justice of the Supreme Court of New South Wales, Murray Gleeson71 identified a trend in Australia’s substantive law ‘towards a preference for individualised, discretionary solutions as against the ­principled application of general rules’.72 This trend towards ‘individualised justice’73 reflected ‘the spirit of the times’,74 with predictability valued less than sensitivity to the unique circumstances of each case. The legislative and judicial response to these demands, Gleeson said, has been to create new causes of action, or adapt of existing rules, in ways that allow for maximum consideration of the individual circumstances of each case. E ­ xamples include the development of the equitable concept of unconscionability,75 the statutory prohibition of misleading and deceptive conduct,76 and the conferral on courts of discretionary powers to make such orders as are ‘fair and equitable’ in each case.77 Delivering individualised justice requires the court to examine the facts in each case in considerable breadth and depth. Further, the application of ‘principle-based regulation rather than more specific rules-based regulation’ expands the scope of the arguments that can be made.78 Sackville explains how the search for individualised justice can create mega-litigation: The more flexible the principles to be applied by the courts, the broader the scope of admissible evidence and the greater the likelihood of a prolonged hearing. When the 68 Ibid [38]–[41]. 69 Wayne J Attrill, ‘The Future of Litigation Funding in Australia’ in Michael Legg, The Future of Dispute Resolution (LexisNexis, 2013) 167. 70 See Lang Thai, ‘Class Action Procedure in Australia – Issues and Challenges’ in Colin B Picker and Guy I Seidman, The Dynamism of Civil Procedure: Global Trends and Developments (ebook, Springer, 2016) 215, 221–24. 71 Later Chief Justice of the High Court of Australia. 72 Chief Justice AM Gleeson, ‘Individualised Justice – The Holy Grail’ (1995) 69 Australian Law ­Journal 421, 421. 73 Ibid. Gleeson took the term ‘individualised justice’ from PS Atiyah, ‘From Principles to Pragmatism’ (Clarendon Press, 1978) 15. 74 Gleeson (n 72) 430. 75 Ibid 425–26. 76 Ibid 427. 77 Ibid 428. 78 Legg (n 11) 18.

30  What is Mega-Litigation? relevant principles require findings to be made as to the subjective intentions or motives of particular parties, the scope of the forensic inquiry is likely to be greatly extended and the contest rendered more bitter than otherwise would be the case.79

Several Australian interview participants agreed that the complex, flexible content of the substantive law was a factor contributing to mega-litigation.80 The trend towards individualised justice has also led to a proliferation of alternative causes of action. A single set of circumstances might give rise to actions in contract, equity and tort as well as constituting a potential breach of corporation, competition and consumer legislation. As the causes of action multiply, the complexity of the litigation increases, as one interview participant explained: You’ll have the same set of facts giving rise … to multiple causes of action, giving rise to different assessments of damage, giving rise to different forms of relief. And [litigants] are reluctant, understandably, to give up any of those because they will give different results.81

It must be acknowledged that the move towards individualised justice, and its effect on the complexity of litigation, is much more visible in Australia than in England.

E.  Legal Culture The attitude of lawyers is a perennial theme in discussions of the cost, ­complexity and delay involved in litigation. Legg points to ‘adversarialism’ as a cause of complex litigation: [T]he taking of every point within the litigation and a lack of cooperation between the lawyers can cause the contentiousness of the case to result in the need for greater evidence (every point must be proved rather than non-core issues agreed), a larger range of claims and associated legal issues so that the size of the litigation increases.82

Complaints about the mindset of lawyers are nothing new. In Bleak House, Charles Dickens delivered the following indictment of the mid-nineteenth century legal profession: The one great principle of the English law is to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow ­turnings. Viewed by this light it becomes a coherent scheme, and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble.83 79 Sackville (n 5) 92. 80 David Harper, Robert McDougall, Participant A5, Participant A8, Participant A15 and Participant A16 interviews. 81 Participant A5 interview. 82 Legg (n 11) 20. 83 Charles Dickens, Bleak House (1853) ch XXXIX.

Causes of Mega-Litigation  31 In a series of articles written 140 years later,84 Adrian Zuckerman reached an unsettlingly similar conclusion. The landmark Woolf reforms to English civil procedure,85 which included ‘sanctions against wasteful procedural posturing’ were, Zuckerman argues, bound to be ineffectual, if the incentives for such behaviour are not removed at the same time. The forensic practices of the legal profession are, inevitably, bound up with the profession’s financial interest in litigation. Accordingly, as long as practitioners are paid by the hour or by the day, they will continue to have an interest in … expanding the litigation process.86

Some interview participants spoke about the culture of the legal profession and the attitude of lawyers as a cause of mega-litigation. Heightened adversarialism was one aspect of this. New South Wales Supreme Court judge Robert McDougall, drawing on experience as both a judge and a lawyer in mega-litigation, described the ‘battlefield mentality’ that can develop within a legal team. Lawyers working on a mega-litigation matter normally form a team: a few partners, some senior associates and a tribe of people down the food chain to do the work. And because they’re working full time on this you do get that closed circle mentality. … And so some people come to identify more than perhaps they should with the client and the justice of the client’s cause. And I do think the increasing tendency to use barristers … as members of the team contributes in some ways to that, because the barrister just doesn’t come in and take an independent look and say ‘this is crap, get rid of it’. They’re drawn in as part of the team doing the work … You don’t always have someone with that independent detachment looking at the case and saying ‘come on, it’s crazy, what are you doing?’

One participant referred to the ‘almost abusive conduct of lawyers’ as a cause of mega-litigation.87 The other attitudinal factor at play is heightened caution: a reluctance to ­abandon any arguable point. One participant explained: the lawyers [in mega-litigation] have to be doubly careful because the demands of the clients sometimes put them at risk, so they don’t abandon things that they might ­otherwise abandon because they are afraid of being sued themselves.88

84 AAS Zuckerman, ‘Reform in the Shadow of Lawyers’ Interests’ in AAS Zuckerman and Ross Cranston (eds), Reform of Civil Procedure: Essays on ‘Access to Justice’ (Clarendon Press, 1995) 61; Adrian AS Zuckerman, ‘Justice in Crisis: Comparative Dimensions of Civil Procedure’ in Adrian AS Zuckerman (ed), Civil Justice in Crisis (Oxford University Press, 1999) 3, 44–45; AAS Zuckerman, ‘A Reform of Civil Procedure – Rationing Procedure Rather than Access to Justice’ (1995) 22 Journal of Law and Society 155; AAS Zuckerman, ‘Lord Woolf ’s Access to Justice: Plus ça change …’ (1996) 59 Modern Law Review 773. 85 Lord Woolf, Access to Justice: Final Report (1996); Lord Woolf, Access to Justice: Interim Report (June 1995), discussed further in chapter seven. 86 Zuckerman, ‘Reform in the Shadow of Lawyers’ Interests’ (n 84) 61, 76–77. 87 Participant E3 interview. 88 Participant A6 interview.

32  What is Mega-Litigation? Another spoke of a failure in the legal profession to discipline the issues which are litigated, make ­judgments about what’s a good issue and what’s a bad issue. And the increasing tendency is to throw every issue into the pool, which I think is a failing in the profession.89

But participants were not universal in condemning the approach of lawyers. Some had presided over mega-litigation in which the legal representatives were efficient, cooperative and reasonable.90 In fact, several English participants expressed appreciation for the experienced, highly skilled commercial litigators who usually acted as counsel in mega-litigation. One judge explained: Well, where you’ve got well-resourced parties, the chances are they’ll have very good lawyers. And on the whole life is much easier when you’ve got very good lawyers.91

Overall, the data suggests that lawyers’ ‘battlefield mentality’ may contribute to some cases of mega-litigation, but is not a necessary condition for the existence of mega-litigation.

F.  Mega-Litigants in Person One interview participant (E12) identified a rather surprising trend: megalitigation involving litigants in person. Participant E12 described these litigants as: Very very sophisticated individuals who are very very wealthy – or were. They’ve decided that they will conduct litigation in person because they’ve been effectively sacked, they’ve got nothing better to do, and they’d rather not spend money on lawyers.

As discussed earlier, lawyers’ adversarial zeal can fan the flames of mega-litigation. But in Participant E12’s view, the absence of lawyers can be even more inefficient: Well, my working rule of thumb is that if you have a litigant in person you can triple the time that you will need. Because it really is important that they understand what is going on. Even the most intelligent, most sophisticated of them need more time just to understand what is happening at the trial. And there are all sorts of short cuts that we use in a trial where we can use the jargon and we know that the parties in front of us have lawyers who will explain it to them. When you have litigants in person, using the jargon is not so easy. And even if you do use the jargon, or the litigant in person does, quite often there are doubts about whether they’ve really understood what it means.

This participant reported hearing a trial that should have taken four weeks but, because one of the parties appeared in person, took 12 weeks.

89 Participant A12 interview. 90 Participant A4, Participant A5, Participant A9, Participant A15, Participant E1, Participant E4, Participant E5 and Participant E10 interviews. 91 Participant E10 interview.

Qualitatively Different from Ordinary Litigation?   33

III.  Qualitatively Different from Ordinary Litigation? From the discussion so far, a picture of mega-litigation has started to emerge: complex, long-running, high-stakes cases. Factual complexity appears to be the single indispensable feature of mega-litigation. None of the other factors considered so far are either unique, or necessary, features of mega-litigation. Aside from factual complexity, is there anything that makes mega-litigation truly different from other types of litigation? I asked interview participants whether they perceived a qualitative difference between mega-litigation and other litigation; or if mega-litigation was just a bigger version of ordinary litigation. Most Australian participants thought there was a qualitative difference. There was variation among English participants. Some thought there was a qualitative difference;92 some thought there was not;93 others were equivocal.94 Those who did perceive a qualitative difference identified three factors that made mega-litigation different from other litigation. The first was the number of issues involved in mega-litigation95 – a consequence of the factual or legal ­complexity of the case. One English participant said that in mega-litigation ‘there are more layers you have to keep an eye on, both procedural and substantive’.96 Participants spoke of the intellectual challenge of absorbing and synthesising material relating to a large number of issues: With mega-litigation the issues are just so complex, the evidence can be – and usually is – so diverse, that it is really, really hard for one person to keep track of it all.97 There must be a sort of point at which, as one person, you’re confronted by so many issues that it just creates … certainly an exponentially different feeling of an enormous amount of work to get through them.98

Implicit in these quotes is the second factor some Australian participants spoke of as qualitatively different: mega-litigation is ‘extremely burdensome on a judge’.99 The burden begins at the pre-trial stage, with huge amounts of material for the judge to absorb and frequent case management hearings.100 If the case goes to trial, it can monopolise a judge’s time for months or even years, after which the judge faces the challenge of writing an enormous judgment. English participants did not, for the most part, report the same sense of personal burden. 92 Participant E1, Participant E2 and Participant E6 interview. 93 Participant E4, Participant E5, Participant E10, Participant E11 and Participant E12 interviews. 94 Sir Richard Aikens and Participant E3 interview. 95 Participant A4, Participant A5, Participant A9, Participant A15, Participant A16 and Participant E6 interviews. 96 Participant E2 interview. 97 Robert McDougall interview. 98 Participant A9 interview. 99 Participant A6 interview. Others expressed a similar view: Robert McDougall, Neville Owen and Participant A16 interviews. 100 David Bleby, Participant A4 and Participant A5 interviews.

34  What is Mega-Litigation? The third factor that emerged as a distinguishing feature of mega-litigation, for both Australian and English participants, was the attitude of the parties and their lawyers to the dispute. One said that the lawyers and parties to mega-litigation had ‘more energy for procedural skirmishes’ than those in an ordinary case.101 Former Federal Court judge, Malcolm Lee, reported that mega-litigation cases do seem to take on a life of their own. One of the problems with it is the feeling that can be underlying it on all sides that it is big, and that it can’t be mastered. [The lawyers] are only on top of certain sections of it. And [there are] too many unknowns in it. That all then transfers from the way counsel are presenting it to the judge’s position. … [I]t’s very difficult … for a judge to impose discipline when it’s beyond the control of the representing parties.

While Lee tended to see lawyers as passive victims of an overwhelmingly complex dispute, others cast lawyers and parties in a more active role in the creation of mega-litigation. In his judgment in the C7 case, Sackville J identified as ‘[t]he fundamental difficulty facing a court hearing mega-litigation’ the fact that ‘the parties may decide, for whatever reason, to engage in a full-blown forensic battle in which almost every barely arguable issue is examined in depth’.102 Michael Black took the military analogy a step further: [T]he difference may be that in mega-litigation the resources at the disposal of the parties are larger, the sense of … financial and other containment that you get in ordinary litigation is less strong, maybe even absent. So that it’s … more like a full-scale war than a battle.

Another participant described a similar lack of containment on the part of ­well-resourced parties: [Y]ou would usually find that the parties who are in a position to conduct [megalitigation] have got the resources to conduct it and so huge resources are often committed to these cases. … Because there’s huge resources you might find that issues are pursued that might otherwise not be pursued.103

One English participant reflected on their own experience as counsel in megalitigation: making many forensic decisions, and reviewing the case strategy, every day and focusing all their mental energy on the single case. This created a ‘different dynamic’ for the judge: When lawyers are engaged in that process, for the court it makes a bigger challenge, because [the lawyers] are planning and plotting and trying to bring on applications and get your attention and get time and so on. And they’ve always got a plan. And the court’s way behind.104



101 Participant

E2 interview. Network Ltd v News Ltd [2007] FCA 1062, [25]. 103 Participant A6 interview. 104 Participant E3 interview. 102 Seven

Qualitatively Different from Ordinary Litigation?   35 Robert McDougall made a link between the parties’ attitude to mega-litigation, and their personality and resources: I do think that corporate or, in some cases, individual ego is far more influential in mega-litigation than it is in ordinary litigation. I think people with a lot of money are prepared to spend a lot of it to try and vindicate their position, whereas more rational human beings say ‘well, why would I spend $1 million for a 50% chance of recovering $1.5 million?’ The answer is obvious: ‘I’ll settle the case’. Mega-litigation people tend to drive on regardless to prove their point.

This suggests a further criterion for identifying mega-litigation: the resources of the parties. Wayne Martin said it was possible to identify a matter which would become mega-litigation at a very early stage: You look at the parties. If they’re very well-heeled litigants and the amount involved is substantial you know it’s going to blow out.

Well-resourced litigants need not be limited to large corporations or extremely prosperous individuals. In both England and Australia, the advent of litigation funding, together with the development of group litigation processes, has created new opportunities for mega-litigation. As with other factors, well-resourced litigants are not a necessary feature of mega-litigation; one participant pointed out that the ‘McLibel’ case105 was run by self-represented litigants on one side. The same participant thought that some cases that would qualify as mega-litigation involved serious inequality of resources: ‘you might have a product liability case where you’ve got a whole load of claimants who are on legal aid, public funding, suing against a big corporate’.106 Several participants said mega-litigation was not qualitatively different from ordinary litigation,107 although some acknowledged that mega-litigation may present different challenges or call for different procedures.108 Some participants emphasised the fundamental similarities between mega-litigation and other cases: There is nothing different about [mega-litigation] cases. They are normal cases with normal problems, they are just longer and have more issues.109 I think there’s a real risk in seeing mega-litigation as something different from ordinary litigation. It’s about access to justice, it’s about getting your case properly determined in a proportionate manner by a judge. And so I feel quite strongly that we shouldn’t separate off the commercial world from everything else.110

Overall, the interviews revealed a range of views about whether mega-litigation is qualitatively different from other litigation. There is evidence that some judges 105 McDonald’s Corporation v Steel and Morris [1997] EWHC (QB) 366 (Eng). 106 Participant E11 interview. 107 Ray Finkelstein, Neville Owen, Participant A5, Participant E4, Participant E5, Participant E10 and Participant E11 interviews. 108 Ray Finkelstein, Neville Owen and Participant E11 interview. 109 Ray Finkelstein interview. 110 Participant E11 interview.

36  What is Mega-Litigation? find mega-litigation different because of the number of issues to be determined, the burden placed on the judge, and the attitude of the parties. This was not, however, a unanimous view.

IV.  Conclusion: Mega-Litigation Described Mega-litigation remains ‘easier to recognise than to define’.111 The discussion, in this chapter, of the importance of a range of factors suggests that bright lines risk arbitrariness. For the purposes of this book, however, the following parameters will be adopted – perhaps better designated as a description than a definition. The term ‘mega-litigation’ will be used to refer to civil litigation between wellresourced parties involving many complex factual (and, sometimes, legal) issues, with the stakes usually exceeding £50 million or $AU80 million (or very significant non-monetary consequences), the trial often (but not necessarily) taking upwards of 40 days, and often involving multiple parties. This description is heavily qualified, and fuzzy around the edges: intentionally so. I take the view, put forward by one interview participant, that litigation can be arranged along a continuum, with very simple cases at one end and mega-litigation at the other.112 It may not be possible to identify a ‘point at which we move beyond orthodox litigation into an entirely new category you call m ­ ega-litigation’.113 But, at the mega-litigation end of the continuum, ‘the management problems are very different from those that arise in the more usual run of the mill cases’.114 But there is minimal difference between cases at the extreme end of the continuum and those immediately adjacent to them. As such, there is little to be gained by ­adopting a bright-line definition. None of the factors in my description is unique to mega-litigation and none, by itself, is determinative. The combination of several of these factors marks out a matter as mega-litigation. There is much interplay between the factors. ­Well-resourced parties may be willing to commit large amounts of resources to the litigation, particularly if the stakes are high. Armed with those resources, the parties and their lawyers may be willing to pursue marginal issues, thus creating legal and factual complexity. The proliferation of issues, backed by virtually limitless resources, in turn leads to the production of massive piles of documents. Add to this a party not inclined to concede any ground in a fight, with a purse large enough to ensure they never have to do so, and you have mega-litigation. This book considers civil rather than criminal litigation. Further, the focus here is on commercial litigation. Undoubtedly, some non-commercial cases fit



111 Long

Trials Working Party Report (n 1) 15 [26]. A16 interview. 113 Participant A16 interview. 114 Participant A16 interview. 112 Participant

Conclusion: Mega-Litigation Described  37 this description of mega-litigation. These include the cases identified above under the discussion of ‘high stakes’: cases involving human rights, public law or non-­financial interests. In these cases, there may be significant inequalities in the resources of the parties on either side. The plaintiffs may prioritise public vindication as much as material gain. There may be a public interest, beyond the interests of the parties, in bringing wrongdoers to account or in placing events on the public record. In cases such as these, questions of justice and efficiency play out differently. There may be a stronger argument for committing court resources to these cases than to disputes about the division of a large sum of money between well-resourced litigants. These non-commercial civil cases have not been entirely excluded from consideration, and I draw on them throughout this book to illustrate certain points. Three interview participants had experience in noncommercial mega-litigation, and were able to provide insights into the dynamics of mega-litigation generally. However, the analysis and conclusions in this book are targeted at commercial l­itigation between well-resourced parties. Caution should be exercised in extending the analysis and conclusions to non-commercial mega-litigation. This chapter has considered the broader social, economic, cultural and legal factors that cause mega-litigation. None of these factors are likely to become less prevalent in the foreseeable future. In particular, complex, high-value international transactions are likely to continue, while the proliferation of documents caused by technology is only likely to increase. Given this, it seems that mega-litigation is a fact of modern life. The next chapter considers the place of mega-litigation in the justice system.

4 Mega-Litigation in the Justice System Now we know what mega-litigation looks like, we can begin to examine its place in the justice system. This chapter situates mega-litigation within the broader themes of the book: justice and efficiency, from the point of view of the parties to litigation and also that of the public. Mega-litigation places burdens on individual judges; on the justice system as a whole; and on the public purse. These latter two burdens mean that megalitigation implicates public justice and public efficiency. A mega-litigation matter does not affect only the parties and judges involved in the case: it affects every taxpayer and every user of the justice system. This is why, in mega-litigation, the task of the court goes beyond doing justice between the parties, and why tension between competing objectives of civil procedure can arise. Yet mega-litigation is not seen only in terms of burden; in a major commercial centre such as London, it can be a source of economic benefits. The relationship between mega-litigation and concepts of public justice and public efficiency is more nuanced than might first appear.

I.  The Burden of Mega-Litigation In the course of handing down judgment in the long-running C7 case, Sackville J of the Federal Court of Australia observed that mega-litigation invariably ‘imposes a very large burden, not only on the parties, but on the court system and, through that system, the community’.1 Certainly, the parties to mega-litigation incur enormous costs. Some wellpublicised figures illustrate the point. Berezovsky v Abramovich was reported to have cost the parties £100 million in legal fees.2 The 2012 litigation over the liquidation of Centro was reported to have cost the parties $1000 per minute in court.3 In addition to legal costs, mega-litigation involving corporate parties t­ypically

1 Seven Network Ltd v News Ltd [2007] FCA 1062, [1]. 2 Rupert Neate, ‘Top London Law Firms Profit From Feuding Russian Oligarchs’ (The Guardian, 4 September 2012), https://www.theguardian.com/law/2012/sep/04/london-abramovich-vberezovsky-court-case. 3 Michael West, ‘Lots of Finger-Pointing? You Betcha’ (Sydney Morning Herald, 7 April 2012) 2.

The Burden of Mega-Litigation  39 occupies hundreds of hours of the time of senior executives: a huge drain on company resources.4 The costs of litigation to the parties are a legitimate concern in the management of mega-litigation. As explained in chapter two, achieving efficiency for the parties is one of the goals of civil procedure; and excessive cost may undermine the attainment of substantive justice for the parties. In some cases of mega-­litigation, an observer’s sympathy for the litigants may be limited. If well-resourced commercial parties, motivated either by ego or by a rational cost-benefit analysis, elect to expend enormous resources on large scale litigation, that is their affair. In other cases – such as those in which there is an inequality of arms, or where there are human rights or public interest elements – the cost of mega-litigation is more concerning. But the full burden of mega-litigation only becomes apparent when we shift our focus away from the parties. Justice Einstein of the Supreme Court of New South Wales observed that mega-litigation places a ‘huge burden … upon a single judge’.5 Some interview participants spoke of the personal impact of hearing a very long trial. In his retirement speech, Justice Neville Owen of the Supreme Court of Western Australia pointed out that the three judges who heard the iconic Australian mega-litigation cases of the mid-2000s (Bell Group, C7 and ASIC v Rich) all retired well short of their compulsory retirement age: a substantial loss to the justice system, which lost experienced judicial officers.6 Neville Owen offered the following reflections on presiding over the Bell Group case: My spouse said I was just almost impossible to live with. … You get this feeling of oppression, that you’re locked in and you can’t escape. … You just have to resign yourself to the fact that you’re there. You’re there, you’re trapped, there’s no way out, you’ve just got to finish it. But … when you can’t see an end in sight, it can become psychologically disturbing.

Another interview participant who had heard a very long trial also spoke of the personal challenges of the experience: I was very conscious that I couldn’t just throw up my hands and say ‘this is all too hard, I’m going to go home and put my head under the blanket and go to sleep for a week’, you can’t do that. But it does impose enormous burdens. People tend to overlook that ­curiously enough judges are actually people, and they have the same sort of problems that other people have. They have health problems, they have family problems, all the usual range of afflictions that affect a human being. You’ve got to be very careful, I think, that you don’t impose burdens on judges that are just too much for them to bear.7

4 See Chief Justice Michael Black, ‘The Role of the Judge in Attacking Endemic Delays: Some Lessons from the Fast Track’ (2009) 19 Journal of Judicial Administration 88, 88–89. 5 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 868, [68] (Einstein J). 6 Owen J, ‘Farewell to the Honourable Justice Neville Owen’ (Retirement speech delivered at special sitting of the Supreme Court of Western Australia, 2 July 2010). Justice Owen retired at age 62, Justice Austin at 63 and Justice Sackville at 64. The compulsory retirement age for Australian judges is 70. 7 Participant A16 interview.

40  Mega-Litigation in the Justice System Another participant spoke of the dangers of the pleadings, submissions and witness statements in mega-litigation getting out of hand: ‘you get information overload in the judge. You can’t simply absorb it.’8 One participant offered this stoic assessment of the burden that mega-litigation places on a judge: At the end of the day, we are judges. Our task is to decide disputes, to do justice according to law. And if a dispute is a big dispute and it takes six months or a year to decide, well it takes six months or a year to decide and there’s no point complaining about it. You do what you can to minimise the impact both in time and in cost and in personal grief, but if once you’ve got it down to its most manageable proportion well you say ‘ok, that’s what I’m here to do and that’s what I’ll do’.9

Another participant was positively enthusiastic about the challenges of mega-litigation: It is more complex [than other litigation]. And it’s more interesting, for that reason. It’s quite satisfying; you start with a morass of material and narrow it down. If you’ve managed it really well it can be good.10

This enthusiasm did not appear to be widely shared among participants (although one said, with similar gusto, ‘I would relish trying the biggest case in the world … in 30 days’11). More common was the view that mega-litigation is extremely demanding in terms of the time and effort required of a judge, at both the trial and pre-trial phases.12 Quite apart from its effect on individual judges, mega-litigation has farreaching consequences for the justice system. The Bell Group litigation provides an extraordinary illustration of this point. The Western Australian government provided the courts with one-off funding of $AU4.2 million solely for the purpose of the Bell Group appeal.13 Any person with a passing interest in court administration will appreciate how difficult it is to secure additional funds for the justice system, even for measures that will benefit all litigants. Western Australian Chief Justice Wayne Martin reflected that this money could have been spent ‘very usefully elsewhere in this system’. Ordinarily, of course, courts will not receive extra money to deal with megalitigation. Instead, they will have to manage within the bounds of their existing resources. A single case of mega-litigation can take up a large proportion of the 8 Participant E3 interview. 9 Robert McDougall interview. 10 Participant E2 interview. 11 Participant E3 interview. 12 Several interview participants spoke of this burden: David Bleby interview; Participant A4, ­Participant A5, Participant A6, Participant A15 and Participant A16 interview. 13 Christian Porter (Attorney-General and Treasurer), ‘Three Judges Appointed for Bell Group Appeal’ (Media Release, 3 December 2010); Neale Prior, ‘WA May Be Big Winner in Bell Group Wrangle’, The West Australian (online), 18 April 2011 http://au.news.yahoo.com/thewest/business/a/-/ business/9213511/wa-may-be-big-winner-in-bell-group-wrangle/.

The Burden of Mega-Litigation  41 time of the judge responsible for that case. This is so, not only during the trial, but also while the judge is writing the judgment. As Austin J, who presided over ASIC v Rich, explained: It is obviously desirable, if possible, for the judge who has heard such a long and complex case to be relieved of other work while the judgment is in preparation. Distraction from the main task has a compound effect, because it is necessary not only to take time out to hear other cases that are assigned, and to prepare judgments in them, but then to spend time working back into the main case in order to reach the state of understanding of the evidence that one possessed before the distraction occurred.14

All of this means that a single case of mega-litigation can effectively deprive a court of a judge for a period of months or even years. One former head of jurisdiction explained: These cases are very challenging for courts. You know that you are going to lose a judge from the ordinary work of the court for a lengthy period. And that is very challenging because courts are never, in my experience, over-resourced and increasingly they are under-resourced. So there’s just no slack in them. So if you lose a judge … there’s a big hole in your capacity to deal promptly with all the other cases.15

Similarly, other heads of jurisdiction said mega-litigation was ‘enormously ­disruptive’16 or ‘incredibly disruptive’17 to the court’s business, especially in a court with only a small number of judges. One explained that mega-litigation affected the work of the court ‘in several ways’: The first and most obvious way is that they took up a lot of court time, not only obviously in terms of judge power at the time of the trial, but also in terms of management before the trial. … They are also cases that have an impact on the administration of the court, not just the judges. Because parties are coming to the court administration for various things a lot, inevitably. And that takes the administration away from other cases. So they have an impact in that sense, as well. And of course when you get to the trial, they literally have a physical impact in terms of the space that they take up. They take up the biggest courts, they take up lots of rooms which have been used by the parties, and there’s generally a feeling, … when there’s a really big case on, it has a ­physical effect on the building itself.18

Another head of jurisdiction was more sanguine about the effect of megalitigation on the court as a whole: We had to make space. But it was manageable, it didn’t create a problem. Nobody was squeezed out; smaller cases weren’t squeezed out. … You organise your list well in advance or you pull in other judges.19

14 Australian

Securities and Investments Commission v Rich (2009) 236 FLR 1, 30. Black interview. 16 Wayne Martin interview. 17 Participant E3 interview. 18 Sir Richard Aikens interview. 19 Participant E4 interview. 15 Michael

42  Mega-Litigation in the Justice System To the extent that mega-litigation does place a burden on the court system, this is not merely an ‘administrative headache’20 for heads of jurisdiction and court administrators. It affects the whole community in two ways. First, megalitigation has consequences for public efficiency. The resources expended on mega-­litigation are public resources. Taxpayers’ money expended on these cases could have been spent elsewhere within the justice system, or on other government responsibilities. Instead, it is spent on a single dispute, often between extremely wealthy litigants. Secondly, mega-litigation affects public justice. During the life of a megalitigation matter, the judge responsible for the case may have little time for any other matters. This, of course, reduces the amount of judicial time available, across the court, for other matters in the court’s list. Writing extrajudicially, Justice Steven Rares of the Federal Court of Australia describes the problem in these terms: if these enormous cases continue to enter the court system, judges will become dedicated, sometimes for years, to hearing them while other litigants must wait for that case to be decided before the judge will become available again for other work.21

Mega-litigation, then, can impede access to justice. This adds a degree of urgency to the quest for efficiency in mega-litigation. At stake is not only the time and money of well-resourced parties, the wellbeing of judges or the expenditure of public funds. Every minute of court time spent on mega-litigation is time not spent on other matters. The same could, of course, be said of any type of litigation. But mega-litigation can occupy months and years of court time. The consequences for the administration of justice as a whole cannot be ignored.

II.  The Benefits of Mega-Litigation Is mega-litigation an unmitigated evil? The answer would appear to depend, to some extent, on whether one takes an Australian or an English perspective. In Australia, mega-litigation is usually seen as a burden on the court system. In England, things are different. London has a long history as a global c­ ommercial centre, and as a leader in the resolution of large commercial disputes. The English courts are the architects of the common law and the adversarial system. In England, therefore, mega-litigation is sometimes seen as a boon for the local economy (because it attracts business to London) and a source of pride for the court system.22 ­Conversations about mega-litigation in England often focus on 20 Michael Black interview. 21 Justice Steven Rares, ‘What Is a Quality Judiciary?’ (2011) 20 Journal of Judicial Administration 133, 143. 22 See, eg, The Right Honourable Lord Justice Jackson, Reform of Civil Litigation Costs: Final Report (December 2009) 275.

Is there Tension between Justice and Efficiency in Mega-Litigation?  43 how London can continue to attract large commercial disputes in the face of ­competition from other litigation centres such as New York and Singapore.23 From this point of view, mega-litigation can be seen to have benefits for public efficiency (as a source of revenue for the London economy), rather than just being a drain on public funds. As ever, there is a complex relationship between the ­various objectives outlined in chapter two. London’s popularity as a litigation centre depends, in large part, on its capacity to provide litigants with fair, efficient, high quality processes.24 Therefore, the public efficiency benefit flows from procedures that promote both justice and efficiency for the parties.

III.  Is there Tension between Justice and Efficiency in Mega-Litigation? As discussed earlier, mega-litigation can place large burdens on the parties, the judge, the justice system and the community. It can also provide benefits to the public, but only if courts are able to conduct mega-litigation in a way that is ­efficient and just for the parties. All of this builds a substantial case for ensuring that mega-litigation is run efficiently. The objectives of public justice and public efficiency, as well as efficiency for the parties, demand nothing less. But I am not suggesting that efficiency ought to be pursued, in the management of mega-litigation, to the exclusion of justice between the parties. Instead, the question I ask in this book is how to reconcile the need for efficiency with the court’s obligation to do justice in each case. Before going further, I will test the assumption implicit in this question: that there will, in some cases, be tension between justice and efficiency in mega-litigation. Many interview participants had observed tension between justice and ­efficiency in mega-litigation. Some acknowledged this explicitly (when asked);25 others did so implicitly, when speaking about the need to balance the demands of an individual case against other objectives.26 Participants spoke about reducing the time and cost involved for the parties (the objective termed in this book ‘party efficiency’);27 using public resources responsibly (‘public efficiency’);28 and being mindful of the needs of other litigants and would-be litigants (‘public justice’).29 23 See, eg, Eva Lein et al, Factors Influencing International Litigants’ Decisions to Bring Commercial Claims to the London Based Courts (Ministry of Justice Analytical Series, 2015) 25–29. 24 Eva Lein et al, Factors Influencing International Litigants’ Decisions to Bring Commercial Claims to the London Based Courts (Ministry of Justice Analytical Series, 2015) 14–16. 25 David Harper, Wayne Martin and Neville Owen interviews; Participant E1, Participant E8 and Participant E10 interviews. Another participant had not personally experienced this tension but acknowledged that it could exist: Participant E2. 26 Participant A6, Participant A15 and Participant E1 interview. 27 David Bleby and Participant A5 interview. 28 Michael Black, David Bleby, Wayne Martin, Peter McClellan and Participant A9 interviews. 29 Michael Black, Ray Finkelstein, David Harper, Peter McClellan, Participant A6, Participant A8, Participant A9 and Participant A15 interviews.

44  Mega-Litigation in the Justice System All of these were seen as legitimate aims of civil procedure. One participant described the tension in the following terms: I think that’s a constant tension, because the problem that the big case presents for you is it could soak up eternal time. You could turn it into a Bloody Sunday inquiry, because the points are endless, the witness statements, the facts quite often go – you know, they’re just extensive, and you could spend an awful lot of time looking at it, but you have to be proportionate. Not only to that case but also to all the other cases in the queue. So you have to have a sense, I think, of reality about what can be achieved in court. And so I think there is a relentless tension between perfect justice and some sort of proportionate time and cost investment, even on the mega-litigation.30

A common observation was that ‘perfect’ or ‘Rolls Royce’ justice was either unattainable, or unjustified in light of the other aims of civil procedure: It’s no use striving for ‘perfect justice’ if, in practical terms, no-one can access it. … Trials that take 10, 12 months to resolve, [with] issues that really you could and should resolve in two weeks – that’s not perfect justice; it’s not really justice at all, it’s just silly.31 I do not believe in perfect justice, being we cannot afford it. … Rolls Royce treatment is usually not appropriate. Even for the parties who can afford it, it should be abandoned because it ruins the system for everybody else.32 Everyone can’t get Rolls Royce treatment, or the system will bog down.33 I think what we’re all trying to get at is fair justice. Which isn’t perfect justice, but it’s good enough in the circumstances.34 It used to be all Rolls Royce. Now it’s not. There is a tension between doing justice perfectly and doing the best you can with the money you’ve got.35 Do we really need that level of perfect justice, given that the cost … is discouraging people from opening the door to the court at all? When the cost and the delay … become so prohibitive that people stay away from the system then you say ‘how robust can we afford to be, in terms of accepting a result that may be skewed by inadequate factual information?’ … How perfect does it have to be?36 Justice is not perfect. One’s got to recognise the limitation of the trial process. There’s got to be a just outcome, which may not be the perfect investigation. That’s something that one has to live with.37 30 Participant E11 interview. The Bloody Sunday Inquiry into the events in Londonderry on 30 January 1972 ran for 12 years under the leadership of Lord Saville of Newdigate, culminating in a 5,000 page report: Report of the Bloody Sunday Inquiry (Her Majesty’s Stationery Office, 2010). 31 Michael Black interview. 32 Ray Finkelstein interview. 33 Participant A8 interview. 34 Participant E11 interview. 35 Participant E2 interview. 36 Wayne Martin interview. 37 Participant E4 interview.

Is there Tension between Justice and Efficiency in Mega-Litigation?  45 These comments reveal a view that parties are not entitled to perfect justice; that, on the contrary, procedure has multiple objectives. In mega-litigation, there are many points at which the judge must deal with tensions between different objectives. These tensions may arise when, for example, a judge must decide whether to limit the length of written or oral submissions; whether to forgive a procedural default; whether to allow pleadings to be amended or discovery to be expanded; whether to give summary judgment; whether to combine the hearing of multiple related proceedings; whether to grant an adjournment or an extension of time; and whether to admit evidence. If justice between the parties were the only priority, these decisions would be easy enough. There would be a strong presumption in favour of allowing any procedural steps that might make even a marginal contribution to determining the case accurately.38 If efficiency for the parties is also a priority, the position is only a little more difficult: much can be cured by costs or consent. But once public justice and public efficiency enter the equation, each procedural decision becomes a delicate exercise with consequences for multiple objectives. Some interview participants reported that they had not experienced any tension between justice and efficiency in mega-litigation.39 One participant, when asked whether this tension ever arose, replied: No not really. The reality is you’ve got to do justice first and efficiency takes care of itself. It’s important that you try and record everything and deal with all the issues that have been raised but you have to bear in mind that we are a trial division. We are not trying to make the law, we … just need to apply the law to the facts. I think we’ve just got to keep sight of that. That breeds its own efficiency at the end.40

Former Federal Court judge Malcolm Lee, when asked the same question, gave a similar answer: No. No, not really. The efficiency is in the early phase, getting things done quickly with the directions. But once you got to the trial element, the issues were there to be decided, it wasn’t as though something had been shorn off improperly.

One English participant said ‘I don’t think I let that conflict happen’.41 For one Federal Court judge, the key lay in adherence to the overarching purpose provision in s 37M of the Federal Court of Australia Act 1976 (Cth).42

38 This was, in fact, the position at common law for much of the twentieth century: see chapter six, section II. 39 Malcolm Lee, Participant A4, Participant A5, Participant E5 and Participant E9 interviews. 40 Participant A4 interview. 41 Participant E5 interview. 42 Section 37M is similar to the overriding objective in r 1.1 of the Civil Procedure Rules (CPR). Overriding objective provisions are considered in detail in chapters seven and eight.

46  Mega-Litigation in the Justice System With all parties working towards the common objective set out in s 37M,43 this participant saw no compromise between efficiency and justice: What I ask is ‘what are you giving up in order to achieve that objective?’ I don’t know the answer to that. … I don’t understand what you’re giving up if everyone is working to that objective.44

The participants who did not see tension between efficiency and justice certainly did not disregard efficiency considerations; they simply did not view efficiency measures as being inconsistent with justice. This may reflect, as explained in chapter two, that the various objectives of civil procedure do not inevitably conflict. The relationship is more nuanced than that. The participants who observed no tension between justice and efficiency may have felt they had found a satisfactory way of reconciling the demands of those objectives. Some participants conceptualised justice as incorporating elements of what is termed in this book ‘public efficiency’ or ‘public justice’. For one participant, ‘proportionality is inherent in justice, and always has been’.45 Another said: justice in the case may involve an idea not merely of achieving in abstract the right outcome, but achieving an outcome in a way that’s fair to other parties … to the case, or indeed litigants more generally.46

This approach does not deny the potential for tension between different objectives; rather, it uses the word ‘justice’ to express the resolution of that tension.

IV. Conclusion The effects of mega-litigation extend well beyond the parties to the case. The judge hearing the case faces an enormous personal challenge; the share of court resources available to other litigants shrinks; and the taxpayer must foot the bill. Yet the effects are not only negative. At least in a major commercial centre like London, mega-litigation can also be a fruitful source of revenue and an attraction for business. Mega-litigation brings with it a dilemma: how to reconcile the court’s duty to do justice in each case with the objectives of public justice and public efficiency? For some interview participants, this was not a problem; they had already reached an accommodation of these objectives. For others, the tension between these

43 Section 37P of the Act obliges parties and their lawyers to act consistently with the overarching purpose. 44 Participant A5 interview. 45 Participant E1 interview. Participant E9 was of a similar view: ‘My own view is that proportionality is not in conflict with dealing with the case justly. It’s the way of doing so.’ 46 Participant E10 interview.

Conclusion  47 objectives was an ongoing challenge. Overall, the interviews supported the view that mega-litigation carries with it the potential for tension between justice and efficiency. Part I of this book ends at this point. The purpose of Part I has been to explain the problem with which the book is concerned: the relationship between justice and efficiency in mega-litigation. In Part II, the search for solutions will begin.

48

part ii Approaches to the Problem

50

5 Justice and Efficiency in Civil Procedure: Theoretical Perspectives This book examines the relationship between justice and efficiency in one context: mega-litigation. Much has been written about this relationship in the broader context of civil procedure and, indeed, in court procedure generally. Part II of this book draws together some of the insights from this broader context to inform the discussion of justice and efficiency in mega-litigation that follows in Part III. Part II begins, in this chapter, by considering the relationship between justice and efficiency at a high level of generality. This chapter is devoted to theoretical perspectives on justice and efficiency in procedure. Chapters six to eight examine how these issues have played out in practice, in procedural rules, and in case law. Together, these chapters provide the theoretical, doctrinal and practical background against which procedure in mega-litigation operates today in the courts of England and Australia. This chapter introduces four leading theories on the relationship between justice and efficiency in judicial procedure generally. First, it looks at the work of Adrian Zuckerman, one of the most prominent contemporary procedural scholars. Zuckerman advocates an approach to procedure that balances the competing objectives of accuracy, cost and time. The contributions made by two giants of legal theory, Richard Posner and Ronald Dworkin, are then considered. As one might expect, given their respective bodies of work, these two scholars have very different ideas about the relationship between justice and efficiency in procedural law. For Posner, procedure can be the subject of an economic cost/benefit analysis which weighs the costs of erroneous judicial decisions against the costs of procedure. Dworkin rejects the suggestion that justice can be traded off against efficiency. He accepts that some compromise is inevitable, but argues that respect for legal rights requires courts to provide a guaranteed minimum level of procedure. The fourth theory presented in this chapter is that of Robert Summers, who suggests that procedure should be evaluated not only by its results – such as cost or accurate decisions – but also by the ‘process values’ it embodies. There is, of course, much that might be said about the merits of each theory. This chapter evaluates them on the basis of their practical value to the judiciary. If a judge were faced with a procedural decision in which the objectives of justice and efficiency (from the point of view of either the parties or the public) came into conflict, what assistance could these theories provide? To test this, I asked

52  Justice and Efficiency in Civil Procedure: Theoretical Perspectives i­nterview participants to comment on the theories. Approximately one week before the interview, participants were provided with a one-paragraph summary of each of the theories.1 During the interview, participants were asked whether they thought the theories had any resonance in practice. This method, although appropriate given the constraints of the project ­methodology,2 had its limitations. Some participants did not have time to read the summaries before the interview. Others, unsurprisingly, found it difficult to grasp the theories based on the summaries provided: much is lost in compressing the ideas of Zuckerman, Posner, Dworkin or Summers into one paragraph. Because of these limitations, a short verbal summary of the theories was provided during the interview, risking further loss of subtlety in the effort to convey the essence of complex theories. But some participants had read the summaries in advance, reflected on them, and prepared responses – sometimes to the extent of short written essays. Some were familiar with the broader work of these scholars, and were able to relate their personal responses to this broader context. Even in the case of those participants who were previously unfamiliar with the theories, this section of the interview often yielded insights into participants’ philosophical approach to procedure, and sparked further discussion about the relationship between justice and efficiency.

I.  Zuckerman: Three Dimensions of Justice A.  The Theory Adrian Zuckerman’s theory of procedure proceeds from the assumption that ‘[a]ll systems of procedure seek to do justice’.3 ‘Justice’, for Zuckerman, ‘has three dimensions by which it is measured’.4 These dimensions are: rectitude (or accuracy) of decision, time and cost. Zuckerman acknowledges that upholding the substantive legal rights of the parties is the ‘most basic’ requirement of any legal system.5 He refers to Bentham’s theory that ‘the direct end of procedure is rectitude of decision, that is, the correct application of the substantive law to the true facts’.6 Accuracy is therefore 1 These summaries are provided in Appendix B. 2 Interview participants were, in general, extremely busy individuals who had agreed to take part in interviews while receiving no tangible benefits in return. Very short summaries were used in order to minimise the burden of preparation on interview participants, and to maximise the likelihood that participants would have time to read the theories before the interview. 3 Adrian AS Zuckerman, ‘Justice in Crisis: Comparative Dimensions of Civil Procedure’ in Adrian AS Zuckerman (ed), Civil Justice in Crisis (Oxford University Press, 1999) 3, 3. 4 Ibid 3. 5 Ibid 4–7. 6 AAS Zuckerman, ‘Quality and Economy in Civil Procedure: The Case for Commuting Correct Judgments for Timely Judgments’ (1994) Oxford Journal of Legal Studies 353, 354, referring to Principle of Judicial Procedure, in Collected Works of Jeremy Bentham, Bowring ed, 1938–43, vol II.

Zuckerman: Three Dimensions of Justice  53 an important aim of any system of procedural law. But Zuckerman argues that accuracy cannot be the only aim of procedure: ‘[a]ccuracy need not be bought at any cost nor is it the sole criterion by which we judge the justice and the effectiveness of civil procedure’.7 Two other ‘dimensions’ of justice must also be taken into consideration: time and cost. Time is relevant to achieving justice for two reasons. First, delay may undermine the rectitude of a decision because evidence needed to determine the true facts may become unavailable or less reliable with the passing of time. Physical evidence may deteriorate; the memory of witnesses may fade or be replaced by reconstruction; witnesses may even die before trial.8 Secondly, the passage of time may ‘erode the utility’ of the court’s determination of the parties’ rights.9 There are cases in which delay would defeat the purpose of litigation, even if the result is unarguably correct in fact and law. Zuckerman gives the example of a plaintiff who wishes to obtain a passport in order to attend a particular overseas event.10 For this plaintiff, a judgment in their favour, no matter how accurate, will be virtually useless if it comes too late. A system of procedural law that permits such consequences fails to achieve a crucial object of the legal process: what Zuckerman describes as ‘putting things right’.11 The matters that make time relevant to justice, then, relate to the interests of the parties. When Zuckerman considers the ‘cost dimension’, however, further interests come into play. For one thing, governments cannot be expected to provide the justice system with unlimited resources. According to Zuckerman, It is clearly counter-intuitive to suggest that the State ought to design the most accurate civil procedure regardless of cost, when the State need not provide, regardless of cost, the most effective health service or, indeed, almost any other public benefit.12

It must therefore be accepted that ‘procedural resources are finite’,13 that State resources are needed for social goals external to the legal system,14 and the State cannot be expected to provide justice at any cost. Compromises in the quality or quantity of procedure provided by the State are inevitable.15 To use a term introduced in chapter two of this book, ‘public efficiency’ forms part of Zuckerman’s cost dimension of justice. 7 Ibid 386. 8 Adrian Zuckerman, Zuckerman on Civil Procedure: Principles of Practice (Sweet and Maxwell, 2nd edn, 2006) 11. 9 Zuckerman, ‘Justice in Crisis’ (n 3) 6–7. 10 Ibid 6. Zuckerman acknowledges that, while delay is likely to have a greater effect on ­plaintiffs, it also has adverse consequences for defendants. For instance, a defendant‘s ability to arrange their finances or to alienate property the subject of a claim may be affected by pending litigation: Zuckerman, ‘Quality and Economy’ (n 6) 362. 11 Zuckerman, ‘Justice in Crisis’ (n 3) 7. 12 Zuckerman, ‘Quality and Economy’ (n 6) 354. 13 AAS Zuckerman, ‘A Reform of Civil Procedure – Rationing Procedure Rather than Access to Justice’ (1995) 22 Journal of Law and Society 155, 158. 14 Zuckerman, ‘Quality and Economy’ (n 6) 386. 15 Zuckerman, ‘A Reform of Civil Procedure’ (n 13) 161.

54  Justice and Efficiency in Civil Procedure: Theoretical Perspectives Zuckerman explains that cost also affects access to justice.16 High litigation costs may prevent people from accessing the courts. But reducing court fees, or increasing legal aid, shifts the cost burden to the taxpayer.17 Zuckerman suggests that costs could sensibly be limited by a notion of ‘proportionality’ between, on the one hand, the complexity of a case and the amount in dispute and, on the other, the procedural steps available to the parties.18 He asks ‘whether it is really better to offer high quality justice to a few, rather than dispense justice, albeit of lesser quality, to a wider segment of society’.19 These three ‘dimensions of justice’ – accuracy, time and cost – will sometimes ‘pull in different directions and call for compromises’.20 On this view, accuracy must sometimes be compromised in order to promote other objects of the legal process (such as access to justice and the utility of judgments) or ‘in order to free resources for the purpose of achieving external social goals, such as improvements in health or transport services’.21 To Zuckerman, procedural law should aim to strike the ‘optimal compromise’ between the three dimensions of justice.22 In short, Zuckerman invites procedural decision-makers to weigh up the dimensions of justice against one another. Zuckerman’s framework is a useful tool for evaluating procedure. But it is silent on just how the ‘optimal compromise’ is to be reached. How are judges to decide when to sacrifice accuracy to save time? When will increased accuracy outweigh an increase in cost? Within Zuckerman’s framework, the answer to questions such as these appears to depend on the impressions and priorities of the relevant decision-maker.23

B.  Participant Reactions Many participants said Zuckerman’s theory aligned quite closely with their view of the role of a judge.24 One ‘really like[d]’25 Zuckerman’s work, with Participant 16 Zuckerman, ‘Justice in Crisis’ (n 3) 9. 17 Ibid 9. 18 Zuckerman, ‘A Reform of Civil Procedure’ (n 13) 158–60. Zuckerman’s call for proportionality foreshadowed the package of reforms in the UK in response to the Jackson Report (Lord Justice ­Jackson, Review of Civil Litigation Costs: Final Report (2009)). 19 Zuckerman, ‘A Reform of Civil Procedure’ (n 13) 161. 20 Zuckerman, ‘Justice in Crisis’ (n 3) 3. 21 Zuckerman, ‘Quality and Economy’ (n 6) 386. 22 Zuckerman, ‘A Reform of Civil Procedure’ (n 13) 161. 23 In introducing an edited volume of perspectives on civil procedure from 13 different countries, Zuckerman explains that the purpose of applying his conceptual framework is not to grade those different systems in order of preference. Instead, the framework draws attention to the different ways in which different systems ‘seek to achieve the goals of justice’. This analysis reveals that ‘what lies behind different methods of doing justice is really a difference in priorities’: Zuckerman, ‘Justice in Crisis’ (n 3) 3. 24 Michael Black, David Bleby, Ray Finkelstein, Wayne Martin, Sir Richard Aikens, Participant A15, Participant A16, Participant E1, Participant E2, Participant E5, Participant E7 and Participant E11 interviews. 25 Malcolm Lee interview.

Zuckerman: Three Dimensions of Justice  55 A3 praising his ‘practical approach’26 and English participants describing the theory as ‘spot on’27 and ‘absolutely right’.28 While the theory was well received by ­Australian participants, it was even more popular amongst English participants, most of whom were already familiar with Zuckerman’s work, and some of whom knew him personally. Two Australian participants pointed out that Zuckerman’s theory was silent on exactly how to strike the balance between the three dimensions: I can relate to [Zuckerman’s theory]. I don’t have any quarrel with that. The big question is how?29 I don’t know how far that gets you, to say that there are these various dimensions. Of course there are. The trick is to determine how you apply them in a particular case.30

Perhaps in a similar vein, two English participants did not think Zuckerman’s theory offered any profound insights, with one describing it as ‘motherhood and apple pie’31 and another saying: Well I think most judges would agree with the three dimensions of justice, that it’s a balance between decision-making, time and cost. I mean, it is. But it’s not particularly deep or philosophical to say that. I mean it just obviously is.32

One participant agreed that Zuckerman’s three dimensions were present in ­procedural law, but did not think the three dimensions were of equal significance: What he calls rectitude or accuracy has to be the aim for me … It would be difficult to accept a compromise on accuracy of decision in the interests of time and cost. It seems to me that accuracy would be fundamental, and time and cost at a different level, or a different order of significance. I mean if you have a justice system which does not have, as its fundamental aim, to give sound decisions, I find that an odd concept. I wouldn’t make them equal, for myself.33

Other participants thought that Zuckerman had omitted some important goals of procedure. Two participants cited fairness – both procedural and substantive – as a further dimension of justice: Accuracy, time and cost. I would have also said fairness. I would have added to that. The end result is we have to produce a fair result.34 [Zuckerman’s theory is] right as far as it goes. But justice is more than that … I’m still wedded to the Rawls position that justice in the end must be fairness, and it’s a question



26 Ray

Finkelstein interview. E2 interview. 28 Participant E12 interview. 29 David Bleby interview. 30 Participant A16 interview. 31 Participant E4 interview. 32 Participant E3 interview. 33 Participant A9 interview. 34 Participant A4 interview. 27 Participant

56  Justice and Efficiency in Civil Procedure: Theoretical Perspectives of not applying principles at the expense of fairness, there have to be principles that deliver fairness for it to be a just system.35

Another participant nominated ‘acceptability’ as an additional dimension of justice: I agree that three tremendously important aspects of the court’s work are accuracy, time and cost. … Another dimension which I think may be involved, though, is acceptability: the public’s acceptance of the system as producing just outcomes. And that will obviously involve the extent to which the decision is seen as being accurate – even though someone mightn’t like it – and it will also involve the time taken to resolve disputes, and the cost involved. But if you don’t have the public confidence in the system, then it’s not doing its job.36

This concept of ‘acceptability’ is similar to the concept of ‘public justice’ used throughout this book. Both concepts are based on the idea that the general public, as well as the parties, have an interest in individual judicial decisions and in the maintenance of the integrity of the justice system. Overall, Zuckerman’s theory had relevance for most participants. The limitations that participants identified have been acknowledged by Zuckerman himself:37 that is, different results may be reached by placing different weighting on the three dimensions of justice. Further, as explained above, some participants thought the theory overlooked important aspects of justice. Zuckerman’s theory cannot provide a complete answer for judges making procedural decisions. It can, perhaps, be used to justify decisions. For example, a judge could explain a decision to limit discovery in mega-litigation by saying the ‘cost’ dimension of justice played an important role in the decision. But the theory does not necessarily help the judge to make the decision; that is, to dictate that the cost dimension should assume more importance than the accuracy dimension in a particular case. Ultimately, the ‘three dimensions of justice’ set aspirational goals for the system, but leave ample room for judicial assessment of where justice lies in each case.

II.  Posner: Economic Analysis of Civil Procedure A.  The Theory The substantial body of literature on the economic analysis of civil procedure38 offers a method of analysing procedure which is guided by objective, rather 35 Malcolm Lee interview. 36 Robert McDougall interview. 37 See Zuckerman, ‘Justice in Crisis’ (n 3) 3. 38 For an introduction to this body of scholarship, see Geoffrey P Miller, ‘Introduction: Economic Analysis of Civil Procedure’ (1994) 23 Journal of Legal Studies 304.

Posner: Economic Analysis of Civil Procedure  57 than intuitive, principles. Richard Posner is, of course, the leading exponent of this approach.39 On Posner’s economic analysis, the aim of procedural law is ‘the ­minimization of the sum of two types of costs’: ‘error costs’ and ‘direct costs’.40 Error costs flow from a failure to reach the correct result in a case. They are the costs of failing to give effect to the substantive law. If an aim of the substantive law is to increase economic efficiency, then a mistaken imposition or denial of liability will reduce efficiency and thereby result in a social cost.41 Direct costs are those incurred by the parties and the State as a result of litigation. They include ‘the time of lawyers, litigants, witnesses, jurors, judges, and other people, plus paper and ink, law office and court house maintenance, telephone service, etc.’.42 Having identified these two types of cost, procedure can be evaluated by calculating the sum of error costs and direct costs. Posner provides a simple example of how this calculation works: Suppose the expected cost of a particular type of accident is $100 and the cost to the potential injurer of avoiding it is $90 … [T]he potential injurer … will avoid the accident – assuming the [law] is administered accurately. But suppose that in 15 percent of the cases in which an accident occurs, the injurer can expect to avoid liability because of erroneous factual determinations by the procedural system. Then the expected costs of the accident to him will fall to $85, and since this is less than the cost of avoidance to him ($90), the accident will not be prevented.43

This scenario results in a social loss of $10 because the cost of the accident ($100) is incurred rather than the cost of avoiding the accident ($90). Taking only ‘error costs’ into account, then, it makes economic sense to improve the accuracy of the procedure. The analysis changes, though, when ‘direct costs’ are included: We must not ignore the cost of operating the procedural system. Suppose that to reduce the rate of erroneous failures to impose liability from 15 percent to below 10 percent would require an additional investment in procedure of $20 per accident. Then we should tolerate the 15 percent probability of error, because the cost of error ($10) is less than the cost necessary to eliminate it.44

39 Although it must be acknowledged that Posner’s description of how judges actually work, drawing on his own judicial experience, is anything but objective and non-intuitive: Judge Richard A Posner, How Judges Think (Harvard University Press, 2008). 40 Richard A Posner, ‘An Economic Approach to Legal Procedure and Judicial Administration’ (1973) 2 Journal of Legal Studies 399, 399; Richard A Posner, Economic Analysis of Law (Little, Brown and Company, 2nd edn, 1972) 429. In the most recent edition of the latter work, Posner drops the phrases ‘error costs’ and ‘direct costs’ but still describes ‘two types of cost’: ‘the cost of erroneous judicial decisions’ and ‘the cost of operating the procedural system’: Judge Richard A Posner, Economic Analysis of Law (Wolters Kluwer, 7th edn, 2007) 593. For convenience, in this book the terms ‘error costs’ and ‘direct costs’ are used. 41 Posner, ‘An Economic Approach’ (n 40) 400–01; Posner, Economic Analysis of Law (2007) (n 40) 593. 42 Posner, ‘An Economic Approach’ (n 40) 401. 43 Posner, Economic Analysis of Law (2007) (n 40) 593. 44 Ibid 593.

58  Justice and Efficiency in Civil Procedure: Theoretical Perspectives As this example illustrates, the economic approach does not prioritise one goal of a procedure over another: the lower the overall cost, the better the procedure.45 The economic analysis of civil procedure provides a method for resolving the tension between justice and efficiency in a way that is analytical rather than ‘visceral’.46 But the approach does not provide a complete solution to the p ­ roblem. For one thing, it would clearly be impractical for a judge, when making a discrete procedural decision, to engage in an economic analysis of the effects of the decision. For these reasons, the economic analysis is more useful as a method of formulating general principles of procedure rather than as a tool for making individual procedural decisions. In fact, Posner appears to envisage economic theory being applied to the design of procedural rules rather than the making of ­individual procedural decisions.47 A more fundamental critique of the economic approach is that it appears to ignore some of the civil justice system’s important values. Michael Bayles points out that [o]ne can reasonably be concerned about the fairness as well as total cost of legal procedures. A process might be less expensive than another but unacceptable because distinctly less fair. Other suggested values that might be omitted from an economic analysis are dignity and participation.48

This is not a compelling criticism of the economic analysis of procedure. Economic analysis could assign a value to fairness or participation and treat these as benefits to be set off against the costs of providing a fair and inclusive procedure. But can the economic approach assign appropriate value to ‘rectitude of ­decision’? In an economic analysis, an incorrect result in a particular matter is bad because it fails to give effect to the goals of the substantive law. An incorrect denial of liability in a personal injury case, for example, may allocate loss inefficiently to the person injured; it may reduce the incentive for others to adopt the efficient, accident-avoiding behaviour required by the substantive law; it fails to deter others from acting in ways that are unlawful (and therefore inefficient). In these ways, incorrect adjudication causes social costs, all of which can be incorporated into a cost/benefit analysis. Yet something seems to be missing from the equation. One would expect that a person who has been wrongly deprived of their legal rights by a court might experience feelings of anger, disappointment or frustration. The economic approach might simply add these negative emotions to the ‘error costs’

45 ‘[I]n general we would not want to increase the direct costs of the legal process by one dollar in order to reduce error costs by 50 (or 99) cents’: Posner, ‘An Economic Approach’ (n 40) 401. 46 Posner, ‘An Economic Approach’ (n 40) 401–02, 430. 47 See generally Posner, Economic Analysis of Law (2007) (n 40) ch 21. 48 Michael Bayles, ‘Principles for Legal Procedure’ (1986) 5 Law and Philosophy 33, 44. The theme of values that do not relate directly to outcomes is covered in more depth below in the section on ‘process values’.

Posner: Economic Analysis of Civil Procedure  59 side of the equation.49 But even an observer with no vested interest in proceedings might feel that something has gone wrong when a court makes the wrong decision. Do these feelings reflect the fact that another kind of damage has been done? Is this, perhaps, damage to the integrity of the justice system rather than just to the parties? Does a denial of legal rights cause some kind of harm that is not incorporated into a conventional economic analysis? Or can ‘injustice’ simply be added to the ‘cost’ side of the ledger? The response from the economic perspective would be that the economic approach can readily cope with these concerns simply by assigning a higher value to accuracy.50 This makes justice between the parties one of a number of objectives to be weighed in decisions about procedure. It denies that justice has any transcendent quality setting it apart from efficiency objectives. To say that this position is intuitively unattractive is, perhaps, to engage in exactly the sort of ‘visceral’ argument that the economic approach sets out to avoid. But it is hard to deny the appeal of the notion that, in the context of courts determining legal rights and obligations, there is something special about justice. And, if justice does have some kind of privileged status, this may mean that it cannot be weighed against competing objectives in the manner required by economic (or other utilitarian) theories.

B.  Participant Reactions Of all the theories, Posner’s received by far the strongest and most frequent negative reactions from interview participants. This may have been, in part, because it was particularly difficult to summarise the economic approach for interview participants without falling into unfair caricature. When it was necessary to provide a verbal summary, the economic theory was described as one that resolved procedural questions according to a cost-benefit analysis. Most participants had reservations about the value of this economic ­analysis. Some said the exercise of ascertaining the error costs and direct costs was ‘completely artificial’,51 unrealistic or impractical:52 it was complex, timeconsuming, specialised work that could not feasibly be incorporated into judicial decision-making.53 The economic theory seemed a long way from judges’ reality. One English participant told me that ‘judges, at least in this country, don’t really

49 Kaplow argues that economic analysis consistently incorporates ‘the cost of sanctions borne by innocent individuals’: Louis Kaplow, ‘The Value of Accuracy in Adjudication: An Economic Analysis’ (1994) 23 Journal of Legal Studies 307, 387. 50 See, eg, ibid 388. 51 Participant E12 interview. 52 Participant E4 and Participant E11 interviews. 53 Sir Richard Aikens, David Bleby, David Harper, Malcolm Lee, Wayne Martin, Neville Owen, Participant A9 and Participant E10 interviews.

60  Justice and Efficiency in Civil Procedure: Theoretical Perspectives think in those terms’;54 another said the economic theory was ‘not how we look at it at all’.55 Another reaction was that economic theory might offer some helpful insights, but was ‘not the sole answer’56 to procedural questions.57 Some participants rejected Posner’s analysis because they rejected the tenets of economic theory.58 Common to the latter two groups of participants was the observation that the economic analysis did not capture all that was valuable in a legal system:59 There are other values which inform legal principles, other than [economic values].60 Sometimes economic answers, you think, that’s just not fair. So for example with company law, when you’re working out the duties of directors, an economic analysis will in certain circumstances let directors off the hook when the average English judge will think ‘no, that’s not right’.61 At the end of the day, the system of justice has to work for the people whose affairs it controls, and its outcomes have to be acceptable to the community as a whole. … The ultimate outcome of what [Posner is] saying is that the losing party has to accept that he is doing good for the community by minimising the overall expenditure on the legal system. And I don’t think that’s what we need to do. We need to decide cases justly.62 I actually don’t think the theory of justice is about cost/benefit analysis because I think it’s about the rule of law. I think the rule of law is about people being able to ­vindicate their rights. … You can’t say that because economically the solution is x, that is n ­ ecessarily the same solution that justice requires.63 There are many values that cannot be quantified. You simply cannot quantify in ­mathematical terms … with any degree of precision so as for example to say ‘well, I am prepared to forego $39.27 worth of procedural fairness in order to get a benefit of $64 of court time that will be saved’. There are imponderables, you can make a kind of informed, or semi-informed, assessment of the trade-offs, but in the end they involve value judgments. … In the end you cannot avoid value judgments, you cannot avoid balancing certain matters that cannot be reduced to quantifiable terms. That I think is the caution that you’ve got to exercise in adopting Posner’s approach.64

These remarks reveal a conviction that the judge must be concerned with justice and with the effect of their decisions on human beings. This is not surprising. But it serves to emphasise that, while interview participants generally took ­efficiency



54 Participant

E10 interview. E2 interview. 56 Participant A4 interview. 57 David Bleby, Participant A4, Participant A16 and Participant E1 interviews. 58 Ray Finkelstein, Wayne Martin, Robert McDougall and Participant A16 interview. 59 See also David Bleby and Participant A4 interview. 60 Ray Finkelstein interview. 61 Participant E10 interview. 62 Robert McDougall interview. 63 Participant E3 interview. 64 Participant A16 interview. 55 Participant

Dworkin: A Rights-Based Approach  61 seriously when dealing with mega-litigation, they were equally aware of other aims of the justice system. In particular, participants recognised the benefits to both the parties and the public of a fair process and result. The responses set out above, particularly the last quote, also reflect a view that procedure involves ‘imponderables’ that cannot be reduced to a mathematical equation; once again, an acknowledgment of the role of immeasurable value judgments in judicial decision-making can be seen. Some participants did report that the economic approach had some resonance with their own experience. Two participants said they had regard to Posner’s basic premise of balancing costs.65 Neville Owen said Posner’s theory ‘does strike a chord with me’ but, like other participants, questioned ‘how you go about making those calculations’ and also doubted whether the economic analysis was capable of quantifying the benefit of a fair trial. In sum, participants found that the economic analysis of civil procedure was of, at most, limited value. Most thought its foundations inadequate and its application impractical.

III.  Dworkin: A Rights-Based Approach A.  The Theory The challenge arising from the discussion of economic theory is to develop an approach that attributes special value to justice, while at the same time taking into account concerns about efficiency. Responding to this challenge, Dworkin develops a theory of procedure hinging on the notion that a special type of harm occurs when a court makes an incorrect decision and thereby fails to enforce a legal right.66 He describes this harm as the ‘injustice factor’ or ‘moral harm’.67 He uses the concept of ‘moral harm’ to argue that litigants are entitled to a certain level of procedure, no matter how inefficient that may be. Dworkin begins by identifying two opposite attitudes that a society might adopt towards procedure. On the one hand is ‘justice at any cost’, which places the aim of achieving the highest possible degree of accuracy in adjudication above all other social objectives.68 Few people would support this extreme position, which would require governments to withhold funding from other legitimate social needs whenever money was capable of producing a marginal gain in accuracy

65 Participant A8 and Participant E5 interviews. 66 Ronald Dworkin, A Matter of Principle (Clarendon Press, 1986) ch 3. Much of this chapter in Dworkin’s work deals with criminal procedure, but the majority of the analysis is applicable to civil cases: see 92–94. 67 Ibid 80. 68 Ibid 84.

62  Justice and Efficiency in Civil Procedure: Theoretical Perspectives in litigation.69 On the other hand is a utilitarian position, similar to the economic approach: procedural law should depend entirely on the basis of cost-benefit calculations about the best interests of society as a whole, balancing the interests of the [parties] against the interests of those who would gain from public savings in a greatest-good-of-the-greatest-number way.70

The first position asserts that litigants have a right to the most accurate procedure possible; the second denies that litigants have a right to any degree of accuracy at all. Dworkin sets out to find the middle ground between these two extreme positions. He finds this middle ground by reference to the notion of ‘moral harm’,71 a concept that he claims ‘will escape the net’ of any standard utilitarian calculation.72 The moral harm theory does not require governments to provide the most accurate procedures possible. But it does recognise that litigants have certain procedural rights. In this way, it departs from the approach advocated by economic scholars: procedural rights act as a ‘trump’ over competing considerations of efficiency.73 Dworkin derives two procedural rights from the notion of moral harm. The first is ‘a right to procedures justified by the correct assignment of importance to the moral harm the procedures risk’.74 This requires the legislature (or the courts in their rule-making capacity) to ‘fix civil procedures that correctly assess the risk and importance of moral harm’.75 The second right applies when judges make procedural decisions.76 This is the ‘right to a consistent evaluation of [moral] harm in the procedures afforded [parties to a particular case] as compared with the procedures afforded others in different cases’.77 This right does not guarantee litigants any specific procedures,78 or even any particular level of accuracy.79 But it does entitle them to ‘procedures consistent with the community’s own evaluation of moral harm embedded in the law as a whole’.80 By interpreting the ‘textual and historical record’ of a society’s procedural laws, it is possible to ascertain the weight that society places on moral harm.81 This weight can be used to fix, in effect, a minimum level of procedure to which every litigant is entitled, regardless of the cost of the procedure or the value of the claim, because every litigant is entitled to a consistent evaluation of the risk of an unjust outcome.

69 Ibid

84. 73. 71 Ibid ch 3. 72 Ibid 81. 73 Ibid 89. 74 Ibid 92. 75 Ibid 92. 76 Ibid 92. 77 Ibid 92–93. 78 Ibid 90. 79 Ibid 96. 80 Ibid 89. 81 Ibid 90. 70 Ibid

Dworkin: A Rights-Based Approach  63 Aspects of Dworkin’s theory can be criticised. Does it follow, from the existence of moral harm, that litigants must possess the two procedural rights that Dworkin describes? A public, as opposed to party-centred, view of justice may even justify less accurate, more efficient procedures. If the time of courts is occupied ­disproportionately by a small number of cases, each of which receives extremely thorough (and therefore accurate) procedure, this may mean that many other claims are kept out of court or are not adjudicated until it is too late. If it is impracticable for many breaches of legal rights to be brought before the courts, those wrongs may never be redressed and great moral harm may be incurred: ‘[w]ithout remedies there are no rights’.82 If we are serious about upholding legal rights, it may be better to employ more efficient, less accurate procedure to achieve greater access to justice. But of course, as explained earlier, Dworkin does not suggest that litigants are entitled to the most accurate procedure possible. He acknowledges at the outset that nobody expects governments to pay for such a procedure, regardless of cost.83 The moral harm theory represents a compromise between absolute accuracy and pure efficiency. Litigants are only entitled to a level of accuracy that is consistent with the value society places on avoiding moral harm. Above that, trade-offs between accuracy and efficiency can be made. Robert G Bone and Michael Bayles have suggested that by using as a reference point the cost that society is willing to pay to avoid moral harm, Dworkin’s theory itself approaches utilitarianism.84 With this in mind, cannot moral harm be incorporated into a utilitarian ­balancing exercise?85 Dworkin argues that moral harm cannot be caught by utilitarian analysis because it exists objectively, irrespective of whether the harm is perceived by the person who ‘suffers’ it, or indeed by anybody else. Therefore, he says, [t]he injustice factor in a mistaken punishment will escape the net of any utilitarian calculation, however sophisticated, that measures harm by some psychological state along the pleasure-pain axis, or by the frustration of desires or preferences or as some function over the cardinal or ordinal preference rankings of particular people, even if the calculus includes the preferences that people have that neither they nor others be punished unjustly. For moral harm is an objective notion, and if someone is morally harmed … when he is punished though innocent, then this moral harm occurs even when no one knows or suspects it, and even when – perhaps especially when – very few people very much care.86

But this reason for placing moral harm beyond the reach of all utilitarian ­calculations is questionable. Moral harm may be difficult to detect and ­quantify, 82 Adrian Zuckerman, ‘Litigation Management under the CPR: A Poorly-Used Management Infrastructure’ in Deirdre Dwyer (ed), The Civil Procedure Rules Ten Years On (Oxford University Press, 2009) 89, 90. 83 Dworkin (n 66) 84. 84 Robert G Bone, ‘Rethinking the “Day in Court” Ideal and Nonparty Preclusion’ (1992) 67 New York University Law Review 255, 262; Bayles (n 48) 33, 48–9. 85 See Kaplow (n 49) 388. 86 Dworkin (n 66) 81.

64  Justice and Efficiency in Civil Procedure: Theoretical Perspectives but so are many of the other factors that the economic analysis takes into account.87 Bayles asserts that, on Dworkin’s own account of moral harm, ‘one cannot p ­ lausibly ­maintain that no monetary value can be placed on moral costs’.88 Despite these difficulties, for the purposes of this book Dworkin’s theory does offer an alternative to Posner’s cost-benefit analysis or Zuckerman’s balancing exercise. The practical outcome of Dworkin’s analysis is that litigants have a right to a minimum standard of procedure. No utilitarian argument can justify a drop below this standard. In this way, moral harm may mark out the boundaries beyond which procedural law should not stray in the name of efficiency. Within those boundaries, moral harm does not dictate the content of procedural rules; nor does it provide an answer to individual procedural problems. ­Zuckerman observes that Dworkin’s approach ‘leaves a very considerable scope for choice between … different procedures and for decisions about the allocation of resources to procedure’.89 Even if we accept Dworkin’s theory in its entirety, then, it may amount to no more than a last line of defence against efficiency measures that encroach on the accuracy of judicial determinations. For a judge faced with a procedural decision in which the values of efficiency and justice conflict, Dworkin’s theory might rule out some of the more extreme efficiency-based outcomes. But it leaves a substantial margin for judicial choice.

B.  Participant Reactions Many participants agreed that there is a minimum level of procedure which courts must provide.90 This idea tapped into some participants’ deepest beliefs about the legal system: I think subconsciously that idea [of a minimum level of procedure] does exist. I think there is, amongst practicing lawyers and judges, … an innate sense of a certain m ­ inimum standard which needs to be observed.91 The touchstone of justice is fairness. And I think that if you impinge on people’s ­procedural rights then you impinge on fairness. If you do, then there is a problem. Whether it’s a moral problem or not is above my pay grade. But it’s definitely a problem.92 In earlier times anyway (I don’t know how things are taught these days) it would have been in every lawyer’s knapsack: a creed that … your client had an entitlement to

87 Such as, for example, the likely effect of a law on the behaviour of individuals. 88 Bayles (n 48) 48. 89 Zuckerman, ‘Quality and Economy’ (n 6) 355. 90 David Bleby, David Harper, Malcolm Lee, Wayne Martin, Peter McClellan, Robert McDougall, Neville Owen, Participant A4, Participant A9, Participant A15, Participant A16, Participant E7, ­Participant E10 and Participant E11 interviews. 91 David Bleby interview. 92 Participant E3 interview.

Dworkin: A Rights-Based Approach  65 have an impartial determination by someone who applied themselves to it and did so without conflict.93 Absolutely [litigants are entitled to a certain level of procedure]. I think that’s what distinguishes courts from other decision-making bodies.94

For English participants, Dworkin’s approach had some resonance with human rights law: one participant said that the courts’ approach to protecting individuals’ procedural rights in public law cases bore some similarity to Dworkin’s theory,95 while another said the theory ‘rings lots of European bells’.96 Dworkin’s procedural rights do not entitle litigants to do whatever they want. After all, Dworkin does not claim there is a right to anything more than a minimum level of procedure. Above the minimum, there is room for compromise. Accordingly, several participants pointed out that it was possible, consistently with the existence of Dworkin-style procedural rights, to limit the procedures available to litigants in order to improve efficiency.97 Two English participants had reservations about the inflexibility inherent in a minimum standard, one saying the standard ‘must move up or down a bit depending on … what is at stake’98 and another warning that ‘standardisation is unreal, because you’re dealing with a myriad of factual situations and a myriad of parties’.99 Another said they did not really think in terms of minimum standards; every litigant was entitled to the same respect and fairness from the court.100 Yet another described Dworkin’s approach as ‘jolly nice from a theoretical point of view but it doesn’t help me too much in the real world’.101 One participant agreed that litigants were entitled to a certain level of procedure, but explained that this did not provide many answers: Of course we recognise that procedural fairness is essential to the operation of the ­judicial system. But that doesn’t mean that a party has to have unlimited opportunities to pursue the case. So in a sense [Dworkin’s theory] just postpones the hard question that has to be asked in a particular case: how much procedural fairness?102

Another thought it was not useful to conceptualise procedure in terms of a ­minimum standard, because the aim of procedure should always be to produce ‘a just result’, in the sense of Zuckerman’s optimal mix of rectitude, cost and time: There must be a procedural mean, as it were, which is going to give you the just result. If you go above that, then it’s unnecessary, so you don’t need it and shouldn’t have it 93 Malcolm Lee interview. 94 Participant A16 interview. 95 Participant E1 interview. 96 Participant E11 interview. 97 Peter McClellan interview (suggesting that the level of procedure required in civil cases might be lower than that required in criminal cases); Robert McDougall interview (‘you can’t expect every piece of litigation to get the Rolls Royce treatment’). 98 Participant E10 interview. 99 Participant E4 interview. 100 Participant E5 interview. 101 Participant E12 interview. 102 Participant A16 interview.

66  Justice and Efficiency in Civil Procedure: Theoretical Perspectives because it’s just producing more complication. If you go below it, you’re not going to have what the parties are entitled to have, namely the just result.103

In summary, although Dworkin’s theory resonated with many participants, it only partly answers the question of how a judge should approach a particular procedural decision. A decision to place a strict time limit on cross-examination, for example, might not fall below the minimum standard Dworkin envisaged. But does that mean that the judge should make the decision? Once again, the judge will have to turn to other resources to decide what is appropriate in each case.

IV.  Summers: Process Values A.  The Theory The theories discussed so far in this chapter assess procedure in instrumental104 or consequentialist terms. For Zuckerman and Posner, procedure is good if it results in the optimal mix of accurate outcomes and efficient use of party and State resources. For Dworkin, procedure is good if it protects against moral harm; in other words, good procedure leads to accurate outcomes. A fourth influential perspective provides a different way of evaluating procedure: by reference to the values it embodies, rather than the outcomes it produces. Robert S Summers distinguishes ‘good result efficacy’ from ‘process value ­efficacy’.105 A procedure that produces accurate, or cheap, or quick, outcomes has ‘good result efficacy’. But for Summers, procedure can be good, irrespective of the results it produces, if it has ‘process value efficacy’; that is, if it gives effect to certain values to which the law attaches significance in the area of procedure. He develops the following provisional list of ‘process values’: participatory governance,106 process legitimacy,107 peacefulness,108 respect for individual dignity,109 privacy,110 consensualism,111 procedural fairness,112 procedural legality,113 rationality114 and ‘timeliness and finality’.115 So, for example, determining legal rights by a judicial 103 Sir Richard Aikens interview. 104 Bayles (n 48) 48–50. 105 Robert S Summers, ‘Evaluating and Improving Legal Processes – A Plea for “Process Values”’ (1974) 60 Cornell Law Review 1, 4. See also Michael D Bayles, Procedural Justice (Kluwers Academic Publishers, 1990) 127–35. 106 Summers (n 105) 20. 107 Ibid 21. 108 Ibid 22. 109 Ibid 23. 110 Ibid 24. 111 Ibid 24. 112 Ibid 24–25. 113 Ibid 25–26. 114 Ibid 26–27. 115 Ibid 27.

Summers: Process Values  67 trial rather than by a duel can be justified in terms of both ‘good result efficacy’ (the judge is more likely to reach the legally correct result) and ‘process value efficacy’ (avoiding a violent duel promotes the process value of peacefulness).116 Unlike the other scholars discussed in this chapter, Summers does not seek to explain the relationship between justice and efficiency in procedure. Rather, he argues that it is not sufficient to consider only outcome-based objectives. Process values are an additional consideration to be taken into account when making procedural decisions. Is Summers’ ‘plea for process values’ convincing? There are two principal critiques of the theory, both of which challenge the idea that process values have an independent existence. First, on close examination, many ‘process values’ may have instrumental justifications:117 they may be important because they achieve desirable ends, rather than being ends in themselves. The real value of a rational decision-making process, or a fair hearing, or an impartial decision-maker, might be their contribution to a more accurate outcome. A complaint that ‘process values’ such as participation or fairness have been denied might really be a complaint that the outcome was inaccurate, or simply adverse to the complainant. For example, in relation to the ‘process value’ of ‘participation’, Louis Kaplow points out that [o]ne does not often hear stories of individuals who win complaining that they did not get their day in court. If there is an independent process value, they would have a claim for reconsideration under proper procedures despite their victory, and if they valued the process significantly, they would choose such a reconsideration, even at some risk of losing.118

It is implausible that a successful litigant would take such a step. And if ‘only losers complain’, ‘one should be suspicious that the complaint is motivated by a concern for the result, and thus an objection to a lack of process may implicitly be an instrumental argument’.119 On this view, many ‘process values’ are captured satisfactorily by the value placed, in economic analysis of procedure, on accuracy of result, and Summers’ work adds little to that analysis.120 The second critique of ‘process values’ is that some values, such as ‘peacefulness’ and respect for individual dignity, are not free-standing process values; rather, they are substantive principles of law that affect procedural rules.121 So, for example, Summers says that rules prohibiting torture in the investigation of crime serve an instrumental purpose (because evidence obtained under torture is unreliable) but also serve the ‘process value’ of ‘humaneness and respect for

116 See ibid 22. See also Martin H Redish and Lawrence C Marshall, ‘Adjudicatory Independence and the Values of Procedural Due Process’ (1986) 95 Yale Law Journal 455, 482. 117 Larry Alexander, ‘Are Procedural Rights Derivative Substantive Rights?’ (1998) Law and Philosophy 19; Kaplow (n 49) 389–95; Redish and Marshall (n 116) 482–91. 118 Kaplow (n 49) 390. 119 Ibid 390. 120 Ibid 390, 400. 121 Alexander (n 117); Redish and Marshall (n 116) 484–45.

68  Justice and Efficiency in Civil Procedure: Theoretical Perspectives individual dignity’.122 Even if torture happened to produce reliable evidence and thus contributed to accurate outcomes, it would still be objectionable because it offends process values.123 But this is a rather odd way of accounting for rules against ‘tortured evidence’. It seems more convincing to say that the substantive law prohibits torture, and this prohibition affects rules of evidence and criminal investigation. In other words, the rules of procedure ‘are themselves constrained by … substantive values’ deriving from the substantive law, and not from any separate morality peculiar to the area of procedure.124 A defence of process values tends to begin with an appeal to a general intuition ‘that process matters to us irrespective of result’.125 As Jerry Mashaw argues: We do distinguish between losing and being treated unfairly. And, however fuzzy our articulation of the process characteristics that yield a sense of unfairness, it is commonplace for us to describe process affronts as somehow related to disrespect for our individuality, to our not being taken seriously as persons.126

There is empirical support for this intuition. Studies of litigant behaviour suggest that litigants place importance on qualities such as fairness, impartiality and participation in the court process; and that there is little correlation between the outcome of a case and litigant satisfaction with the court process.127 Process values also seem to be incorporated in many existing rules of procedure. The rules of natural justice are sometimes justified by reference to values such as institutional legitimacy and respect for individual dignity, as well as on the instrumental ground that the rules improve the accuracy of decision-making.128 Similarly, the principle that court proceedings must be held in public has both an ‘instrumental’ justification (public proceedings are less likely to produce corrupt or irrational results) and a ‘non-instrumental’ justification (public proceedings enhance the legitimacy of the court process).129 The importance of these rules of procedure goes beyond their contribution to achieving justice in a particular case. To the legal system, as well as to individual litigants, process matters.

122 Summers (n 105) 23. 123 Ibid 23. 124 Alexander (n 117) 35. 125 Jerry L Mashaw, ‘Administrative Due Process: The Quest for a Dignitary Theory’ (1981) 61 Boston University Law Review 885, 887. 126 Ibid 888 (emphasis in original, citations omitted). 127 See, eg, John Thibaut and Laurens Walker, Procedural Justice (Hillsdale, 1975); Laurens Walker, E Allan Lind and John Thibaut, ‘The Relation Between Procedural and Distributive Justice’ (1979) 65 Virginia Law Review 1401; Tom R Tyler, ‘Procedural Justice and the Courts’ (2007) 44 Court Review 26; Tania Matruglio, Plaintiffs and the Process of Litigation: An Analysis of the Perceptions of Plaintiffs following their Experience of Litigation (Law Foundation of NSW, Sydney, 1994); E Allan Lind et al, ‘In the Eye of the Beholder: Tort Litigants’ Evaluations of Their Experiences in the Civil Justice System’ (1990) 24 Law and Society Review 953. 128 See, eg, Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 4th edn, 2009) 404–08. 129 See Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J).

Summers: Process Values  69 The importance of process values might be explained by reference to John Rawls’ concept of ‘procedural justice’. ‘Perfect procedural justice’ exists when ‘there is an independent standard for deciding which outcome is just and a procedure guaranteed to lead to it’.130 While court procedure may aim to produce a just outcome, it cannot guarantee such an outcome. Court procedure is better understood as either ‘imperfect’ or ‘pure’ procedural justice. ‘Imperfect procedural justice’ exists when ‘there is an independent criterion for the correct outcome’ but ‘there is no feasible procedure which is sure to lead to it’.131 Rawls posits the criminal trial as an example of imperfect procedural justice.132 It is possible to design procedures that will produce the right outcome (convicting the guilty and not the innocent) in most cases, and if the wrong outcome is reached, this will spring ‘from no human fault but from a fortuitous combination of circumstances which defeats the purpose of the … rules’.133 ‘Pure procedural justice’, on the other hand, exists where there is no independent criterion for the right result: instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed.134

If one accepts that there is an objectively correct result in every legal dispute, with the court’s task being to reach that outcome, then trials present a situation of imperfect procedural justice. But what if one takes the view that many legal questions do not have a single right answer; or, at least, that there is no way, independent of the legal process, to ascertain the right answer? On this view, litigation is an instance of pure procedural justice. We cannot say whether a judge has reached the correct outcome, but we can assess whether fair procedures have been followed. As Z ­ uckerman argues: we do not have a super-test for judging the conformity of judgments to the truth. All we possess is the legal procedure that we have devised. It follows that our confidence in the justice of any given decision, in its conformity with fact and law, is a function of our confidence in the procedure that has produced the particular result, or of our acceptance of the procedure, as distinguished from the particular result, as a just procedure.135

In other words, because it is so difficult to know whether court procedure has produced a just result, we judge procedure by its inherent values, not only by the results it produces. Accepting, then, that process values exist and are important, what role ought they to play in formulating and applying rules of civil procedure? Can process values be translated into process rights? Might litigants have a positive right to procedures that reflect certain process values such as procedural fairness or

130 John

Rawls, A Theory of Justice (Bellknap Press of Harvard University Press, 1971) 85. 86. 132 Ibid 85–86. 133 Ibid 86. 134 Ibid. 135 Zuckerman, ‘Quality and Economy’ (n 6) 355, citing Rawls (n 130) 86. 131 Ibid

70  Justice and Efficiency in Civil Procedure: Theoretical Perspectives participation? One view is that, while process values might be desirable, they are not important enough to justify the investment of resources in their promotion through the medium of procedure.136 Summers himself makes a relatively modest claim – that ‘[p]rocess values are relevant in evaluating and in choosing between legal processes, actual or proposed’.137 He accepts that process values can sometimes be sacrificed in order to achieve desired results.138 Process values, then, are a factor which can contribute to, but not necessarily dictate, procedural decisions.

B.  Participant Reactions Many interview participants found process values consistent with their own views.139 One participant, when asked whether process values were important, replied: Oh, absolutely. Of course. I mean, putting it in colloquial terms, people want to get a fair go and they must be seen to get a fair go. And there are certainly many litigants, even though they lose, who say ‘I got a fair go, and I got a hearing, and I lost, and I am really disappointed that I lost but I understand.’ But also because they’ve had their day in court. I mean, there are notions in simple terms, colloquial terms, that express these ideas, and that’s what courts are meant to do.140

Similarly, another participant said: Yes, the way you do it matters. … You might get to the end with a good result but if there has not been a good process then everyone feels a bit queasy.141

Participants identified various process values from their experience. The most commonly identified was fairness.142 Others were equality,143 respect,144 dignity,145 participation,146 humanity,147 autonomy,148 transparency,149 reason150 and intelligibility.151 136 See, eg, Alexander (n 117) 36. 137 Summers (n 105) 38. 138 Ibid 39. 139 David Harper, Malcolm Lee, Wayne Martin, Peter McClellan, Robert McDougall, Participant A9, Participant A15, Participant E1, Participant E2, Participant E4, Participant E5, Participant E7 and Participant E11 interviews. 140 Participant A16 interview. 141 Participant E2 interview. 142 Malcolm Lee, Wayne Martin, Participant A16, Participant E4 and Participant E11 interviews. 143 Participant E2 and Participant E11 interviews. 144 Participant E2 interview. 145 David Harper and Participant A16 interview. 146 Robert McDougall and Participant E11 interview. 147 Participant A15 interview. 148 Participant A16 interview. 149 Wayne Martin interview. 150 Participant A16 interview. 151 Participant A9, Participant A15 and Participant A16 interviews.

Summers: Process Values  71 Participants provided examples of how their approach to procedure gave effect to process values. For one, it was as simple as ‘referring to individuals by their name (rather than a nickname)’ as an expression of equality and respect.152 Another explained the importance of explaining the court process to litigants in person: I’ve had more than one person in that position thank me at the end of the day when they’ve lost, and/or say something to the staff, the clerk, say ‘at least I thought I was heard’. And that’s very good.153

One participant explained how active case management of complex cases could help the parties (as distinct from their lawyers) become involved in, and understand, the process: A general counsel of a very very large corporation … said to me ‘I turned up at the first directions hearing in a case in front of you and it was the first time it had ever been explained to me, because I was sitting there hearing someone independent saying “I don’t understand that issue … can you explain how it fits?” “It fits this way your Honour, look at this agreement.”’ And then a question arose about discovery … and there was great debate about the scope. We came down to two or three documents that needed producing. And counsel said to me when the case had finished ‘… first of all I understood the issues for the first time. Second of all, I was able to go back to my office and say to the people on the ground, ‘the judge has worked out that the issue is X, I understand that issue, and we have to produce the following four bits of paper because they will go to show A, B and C relevant to that issue.’ And not only did she own it, but the people on the ground within the company owned it because they had someone inside saying ‘no, this is actually right, and we understand why it’s being done’. The old process was some lawyer within some law firm … ringing up [the client] and saying ‘I want the following documents’. ‘We’re not giving them to you, why should I produce them?’ So [Summers] is right, they have to own the process.154

Not all participants saw their own approach mirrored in Summers’ work. Two English participants were sceptical of viewing procedure in non-instrumental terms: In practical terms, most of the time I think we’re concerned with trying to achieve the right outcome without excessive expense and delay. … If the Summers stuff involves something different, I’m not sure I do particularly think in those terms.155 Procedure is a means to an end. It’s not an end in itself. And the end is the just result. And it would be hopeless having a procedure which embodies [process values], but it doesn’t produce a just result at the end of it. So I’m afraid I don’t think very much of that theory at all, and I think it would actually be a wrong theory to attempt to adopt because you couldn’t be satisfied at the end of it that the parties would go away happy: ‘well, we’ve had our day or our month or our two months in court, and yes we had a lot

152 Participant

E2 interview. E5 interview. 154 Participant A5 interview. 155 Participant E10 interview. 153 Participant

72  Justice and Efficiency in Civil Procedure: Theoretical Perspectives of equality and fairness during the process but it hasn’t produced a just result.’ So what’s the use of the procedure?156

One Australian participant accepted that process values mattered, but pointed out that this did not obviate the need to reconcile competing objectives; it only adds another objective into the mix: Again, it comes back to, perhaps, questions of proportionality, where you’ve got to measure those values, important as they are, against others, and try and achieve a fair balance …157

Process values, then, provoked a similar response to Zuckerman’s concept of the three dimensions of justice discussed above. While the theory did resonate with many participants, it did not promise to help make particular decisions.

V. Conclusion The theories in this chapter have revealed several distinct ways of thinking about the relationship between justice and efficiency in procedural law. For Zuckerman and Posner, competing considerations must be weighed against each other, and a compromise reached that brings about the greatest overall good. These approaches treat the goal of giving effect to substantive legal rights as one of several objectives of procedure, each of which can be compromised in order to achieve other goals. For Dworkin, in contrast, litigants have non-negotiable procedural rights that cannot be sacrificed in the name of efficiency. Summers offers a different perspective. Procedure can do more than produce just and efficient outcomes; it can embody values such as dignity and participation. On this view, procedure should aim to incorporate these values even if this is not conducive to either efficiency or justice. Participant responses indicated that these theories embodied some important truths about procedure that were reflected in practice. In the end, however, participants recognised that the theories left the task of balancing different objectives in the hands of each judge. None of the theories removes the evaluative and subjective elements of procedural decision-making. Only the economic analysis would even purport to do so; and a proper application of the economic analysis to individual procedural decisions is clearly not practicable for a trial judge. A further caveat to this discussion is the limited role of theory in judicial ­decision-making in general. John Gava argues that to expect a judge to be theoretically pure and consistent when facing real-world ­problems, with litigants who want an answer to their problem (and not an abstract



156 Sir

Richard Aikens interview. A16 interview.

157 Participant

Conclusion  73 scholarly treatise) in real-world time, is to totally misunderstand the judicial function and the constraints operating on judges. Good judges use logic, analogy, common sense and consequentialist reasoning but they are not philosophers and their reasoning does not and cannot match the rigour expected of logicians and philosophers. The need to decide expeditiously means that a judge can never approach the rigour of a philosopher who has the time to squeeze all the possible implications out of an idea.158

The comments of some interview participants reflected this position: Judges don’t talk about theory. Maybe we should.159 I’m not really a theory person.160 I’m not sure I’ve ever thought about the theory of procedure.161 The trouble is that there is not a great deal of scope for the luxury of philosophical or jurisprudential consideration when you’ve got a thousand cases in your list.162

There are two key points to take away from the discussion of theory in this chapter. First, the theories show us, once again, that procedure has multiple objectives – accuracy, fairness, time, cost (for the parties and the public), access to justice – that must be reconciled in some way. Discussion of the theories with ­interview participants indicated that this was widely accepted amongst the judiciary. Secondly, none of the theories provides a complete, workable way for a judge to perform this reconciliation in a specific case. At most, the theories draw the boundaries of the decision-making task, or suggest factors to be considered. The next three chapters examine how the relationship between justice and efficiency in civil procedure has played out in practice.

158 John Gava, ‘Dixonian Strict Legalism, Wilson v Darling Island Stevedoring and Contracting in the Real World’ (2011) 30 Oxford Journal of Legal Studies 519, 524. 159 Michael Black interview. 160 Participant E4 interview. 161 Participant E5 interview. 162 Participant A6 interview.

6 A Brief History of Justice and Efficiency in Civil Procedure In the previous chapter we saw that the relationship between justice and efficiency in procedure has presented scholars with challenging, and largely unresolved, questions. Of course, these are not solely theoretical questions. The question of how to give effect to the different goals of civil procedure is one with which courts wrestle daily. Chapters six to eight explore the ways in which this challenge has been approached over the last 150 years of Anglo-Australian civil procedure. Not only does this provide further perspectives on the puzzle at the centre of this book (the relationship between justice and efficiency in civil procedure); it also provides the context for the discussion, in Part III, of how judges deal with mega-litigation. Mega-litigation does not exist in a vacuum; decisions about how to manage megalitigation are informed by the principles and rules of civil procedure generally. This chapter takes the form of a brief history of Anglo-Australian civil p ­ rocedure from the mid-nineteenth century to the early 1990s. Over the last 150 years, the law of civil procedure has progressed through a series of evolutionary stages.1 The trajectory of civil procedure in England and Australia over that time was broadly similar. Each stage was precipitated by the need to overcome problems with the existing system, and to meet society’s changing demands. Section I of the chapter explains the concerns that led to one of the most momentous events in the history of civil procedure: the passing of the UK Judicature Acts in the 1870s. The Judicature Acts removed much of the excessive complexity of procedure, ushering in a new era in which the dominant aim of procedure was justice between the parties to each case. This era is the subject of section II of this chapter. Giving litigants free rein to run their cases led to undesired levels of expense and delay in litigation. This, in combination with increasing caseloads and changing community expectations, led to the next stage in the evolution of civil procedure: the rise of case management, discussed in section III. This overview of the evolution of civil procedure sets the stage for a more detailed examination, in chapters seven and eight, of developments in English and Australian civil procedure over the last three decades. 1 The experience in the United States has been quite similar. Robert G Bone describes American procedure as passing through three eras between the 1840s and the present, each area roughly corresponding to those described here: Robert G Bone, ‘Making Effective Rules: The Need for Procedure Theory’ (2008) 61 Oklahoma Law Review 319, 320–27.

The Judicature Acts  75

I.  The Judicature Acts A natural starting point for discussion of modern procedure is the mid-nineteenth century English civil justice system; once described as ‘very little system and precious little justice’.2 Nineteenth century English procedure was notorious for its extraordinary complexity and formality.3 Quite apart from the huge time and cost of litigation, claims were as likely to fail on procedural grounds as on their merits.4 The ‘outstanding feature’5 of the administration of justice at this time was the division of the courts of law and equity. Lord Bowen, writing in 1887, explained the problems this created for litigants: Suits in Chancery were lost if it turned out at the hearing that the plaintiff, instead of filing his bill in equity, might have had redress in a law court; just as plaintiffs were nonsuited at law because they should have rather sued in equity, or because some ­partnership or trust appeared unexpectedly on the evidence when all was ripe for judgment. Thus the bewildered litigant was driven backwards and forwards from law to equity, from equity to law.6

Even if litigants managed to commence their case in the correct jurisdiction, their problems were not over. Common law procedure was ‘antiquated, technical and obscure’;7 Sir Jack Jacob described how ‘[j]ust claims were liable to be defeated by trivial errors in pleading, by infinitesimal variances between pleading and proof and by the non-joinder or misjoinder of mere nominal parties’.8 Procedure in the Court of Chancery was no better; it was ‘more technical, if that were possible, than the courts of common law themselves’.9 Moreover, Chancery was famously ­dilatory. A litigant could not commence a suit in equity ‘with any reasonable hope of being alive at its termination, if he ha[d] a determined adversary’.10 It was in response to these widely recognised problems that the 1873 and 1875 Judicature Acts11 were passed. The Judicature Acts fused the jurisdictions of

2 Sir Jack IH Jacob, ‘Civil Procedure since 1800’ in The Reform of Civil Procedural Law (Sweet & Maxwell, 1982) 193, 194. 3 Ibid 194–204; Lord Bowen, ‘Progress in the Administration of Justice During the Victorian Period’ in Select Essays in Anglo-American Legal History, Volume 1 (Little, Brown and Company, 1908) 516; John Sorabji, English Civil Justice after the Woolf and Jackson Reforms (Cambridge University Press, 2014) 34–46. For a more colourful treatment of the problems associated with civil procedure in this era, see Charles Dickens, Bleak House (1853). 4 See WB Odgers, ‘Changes in Procedure and in the Law of Evidence’ in A Century of Law Reform (Macmillan & Co, 1901) 203. 5 Jacob (n 2) 195. 6 Lord Bowen (n 3) 518. 7 Ibid 516, 519. 8 Jacob (n 2) 197 (citations omitted). 9 Odgers (n 4) 207. 10 George Spence, First Address to the Public, and More Especially to the Members of the House of Commons, on the Present Unsatisfactory State of the Court of Chancery; and Suggestions for an ­Immediate Remedy (W Walker and Ridgways, 2nd edn, 1839) 9. 11 Supreme Court of Judicature Act 1873 (UK); Supreme Court of Judicature Act 1875 (UK).

76  A Brief History of Justice and Efficiency in Civil Procedure common law and equity, so that an action could no longer be defeated on the basis that it was commenced in the wrong jurisdiction. In addition, the complexity of procedure was greatly reduced. The reforms had their ‘teething troubles’12 – the new procedures were still ‘far too elaborate and precise’ for many cases, and there was an immediate increase in the cost of typical proceedings.13 Nonetheless, the Judicature Acts were a ‘great stride forward’,14 precipitating a new way of thinking about civil procedure.

II.  Post-Judicature Acts: Complete Justice Chapter two of this book introduced multiple objectives of civil procedure, ­classified as justice and efficiency, from the point of view of the parties to a case and of the public. Post-Judicature Acts procedure was directed almost exclusively to one of these objectives: justice between the parties.15 John Sorabji describes the procedural philosophy of this era as one of ‘complete justice’.16 Late nineteenth and early twentieth century courts carefully avoided any suggestion that rules, rather than substantive justice, dictated procedure. Collins MR famously described the relationship of procedural to substantive law as that of handmaid rather than mistress and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.17

The tone was set by a trio of seminal cases, in the 15 years following the passage of the Judicature Acts, on the amendment of pleadings. In Tildesley v Harper18 in 1878, Bramwell LJ indicated that an amendment should be allowed unless I have been satisfied that the party applying was acting malâ fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise.19

12 Patrick Polden, ‘The Judicature Acts’ in The Oxford History of the Laws of England (Oxford ­University Press, 2010) vol XI, 757, 766–70. 13 Lord Bowen, ‘Law Courts under the Judicature Acts’ (1886) 2 Law Quarterly Review 1, 8 (emphasis in original). 14 Jacob (n 2) 205. 15 See Adrian Zuckerman, ‘Litigation Management under the CPR: A Poorly-Used Management Infrastructure’ in Deirdre Dwyer (ed), The Civil Procedure Rules Ten Years On (Oxford University Press, 2009) 89, 98. 16 Sorabji (n 3) ch 2. 17 Re Coles and Ravenshear [1907] 1 KB 1, 4. 18 Tildesley v Harper (1878) LR 10 Ch D 393. 19 Ibid 396–97. Bramwell LJ expressed similar views, in relation to relief from procedural defaults, in Collins v The Vestry of Paddington (1879–80) LR 5 QBD 368, 379.

Post-Judicature Acts: Complete Justice  77 Applying this approach in Clarapede & Co v Commercial Unions Association,20 Brett MR indicated: However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated in costs.21

Finally, Cropper v Smith22 in 1884 Bowen LJ made a similarly emphatic statement of the primacy of justice between the parties. In relation to a proposed amendment of pleadings, his Lordship said: the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with the rights. … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace. … It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything in case is a matter of right.23

Although Bowen LJ was in dissent in this case, his Lordship’s view became a ­‘classical statement’24 on the role of the court in procedural matters. This new philosophy of procedure was not confined to England. The Cropper v Smith approach was adopted by Australia’s High Court within the first 10 years of its existence.25 Isaacs J put it like this: There is not only a power, but even an imperative duty cast by the legislature on the Court, to let no formality stand in the way of solid justice. The Court is directed to make every amendment, and at all times, so as to enable it to do what is right between the parties, and in the fairest and fullest manner possible to arrive at a determination of the substantial matter in dispute.26

Much later, in 1974, the High Court of Australia reaffirmed Bowen LJ’s approach. In Clough and Rogers v Frog,27 McTiernan ACJ, Menzies, Gibbs and Mason JJ

20 Clarapede & Co v Commercial Unions Association (1883) 32 WR 262. 21 Ibid 263. 22 Cropper v Smith (1884) 26 Ch D 700. 23 Ibid 710–11. 24 Queensland v JL Holdings Ltd (1997) 189 CLR 146, 164 (Kirby J). 25 Shannon v Lee Chun (1912) 15 CLR 257, 261–62. The High Court of Australia was established in 1903. 26 Ibid 265. Both Cropper v Smith and Shannon v Lee Chun involved application of a rule providing that ‘[a]ll such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties’. 27 Clough and Rogers v Frog (1974) 48 ALJR 481.

78  A Brief History of Justice and Efficiency in Civil Procedure explained that a primary judge had erred in refusing to allow a defendant to amend their pleadings to raise a new defence: As the defence, if established, would be a complete answer …, the amendments sought should have been allowed unless it appeared that injustice would thereby have been occasioned to the respondent … [T]he matters relied upon by the respondent in opposition to the amendment sought go at the most to delay and irregularity only, matters which are relevant to costs but do not constitute injustice to the respondent in the sense in which that expression is used.28

These quotes demonstrate the prevailing view, post-Judicature Acts, that the role of civil procedure was to enable the court to determine disputes on their merits, in a way that was fair to the parties. This appears to have been a reaction to the excessive technicality and injustices of the pre-Judicature Acts era. Now, there was a narrow focus on doing justice between the parties, with little concession to efficiency considerations; procedure did not ‘look beyond the case in hand’.29 Litigants were seen as having a positive right to ventilate the issues in dispute, with a corresponding duty on the court to determine those issues on their merits. The one apparent limit on the freedom of the parties to take virtually any procedural step was that injustice must not be done to another party in the case. Even so, virtually all prejudice caused to other parties could easily be cured by what Bowen LJ described as the ‘panacea which heals every sore in litigation’: an order for costs.30 It would be too simplistic to say that efficiency considerations played no role in procedural law during this era. The principle of res judicata, for instance, prioritised the ‘public interest’ in bringing litigation to an end ahead of the objective of determining the rights of the parties.31 Limitation periods and rules providing for summary or default judgment allowed the possibility that actions could be disposed of without a full hearing on the merits, albeit subject to strict limits and discretionary considerations. Overall, however, the principles of civil procedure and the way in which the rules were applied gave primacy to the objective of doing justice between the parties. A further, related, principle emerged as a feature of post-Judicature Acts procedure: the parties controlled the litigation process. Not only did litigants have a right to have the real issues determined; they also had the right to choose how and when this happened. The respective roles of the parties and the court were defining features of the adversary system. Sir Jack Jacob explained that: The major premise of the adversary system is that it is the overriding duty of a court of law to remain at all times passive, neutral and inactive, so that the adversaries, or as 28 Ibid 482. 29 D Piggott, ‘Relief from Sanctions and the Overriding Objective’ (2005) 24 Civil Justice Quarterly 104, 104. 30 Cropper v Smith (1884) 26 Ch D 700, 711 (Bowen LJ). See also Clarapede & Co v Commercial Union Association (1883) 32 WR 262, 263. 31 See The Ampthill Peerage [1977] AC 547, 575; Johnson v Gore Wood & Co [2002] 2 AC 1, 31.

Post-Judicature Acts: Complete Justice  79 they are sometimes called, the legal gladiators, should conduct their own litigation in their own way, subject to the rules and practices of the court. The court should never descend into the arena and should never wear or appear to wear the mantle of the advocate. The role of the court is seen, and indeed it is required that it should be seen, as that of an umpire who will ensure that the parties observe the rules of the game. The court does not, and virtually cannot, take initiative at any stage of the proceedings but must leave that to the parties or their lawyers who, under the principles of what are called party control and party prosecution, are entitled and required to exercise control over the conduct of the proceedings, … and it is the parties and their lawyers who retain throughout the initiative of taking whatever steps or measures they consider necessary or desirable in the progress of the proceedings before trial.32

This passage reflects the view that party control of proceedings is not merely a matter of convenience; it is a means of preserving judicial impartiality. Party control is, as Jacob points out, a feature that distinguishes ‘adversarial’ from ‘inquisitorial’ systems of justice. To similar effect are the remarks of Denning LJ, in his iconic explanation of the role of the judge in an adversarial system: In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question ‘How’s that?’ His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon LC [in Ex Parte Lloyd (1822) Mont 70, 72n] who said in a notable passage that ‘truth is best discovered by powerful statements on both sides of the question’? … … The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well.33

Party control is not merely a matter of procedure or convenience; it is linked to conceptions of the role of a court in an adversarial system, and indeed to liberal conceptions of the relationship between citizens and government.34 Party control has a pedigree traceable to the Norman invasion.35 For many years, civil ­procedure 32 Sir Jack IH Jacob, ‘The Reform of Civil Procedural Law’ in Sir Jack IH Jacob, The Reform of Civil Procedural Law (Sweet & Maxwell, 1982) 1, 24–25 (citations omitted). 33 Jones v National Coal Board [1957] 2 QB 55, 63–64. 34 Alan Uzelac, ‘Global Developments – Towards Harmonisation (and Back)’ in Alan Uzelac (ed), Goals of Civil Justice and Civil Procedure in Contemporary Judicial Systems (Springer, 2014) 3, 7. 35 Kenneth M Vorrasi, ‘England’s Reform to Alleviate the Problems of Civil Process: A Comparison of Judicial Case Management in England and the United States’ (2004) 30 Journal of Legislation 361, 364.

80  A Brief History of Justice and Efficiency in Civil Procedure was driven by these ideas about the right of parties to control proceedings. It was the parties’ prerogative to choose how, and at what pace, the case would progress.36 There was little the court could (or should) do to expedite proceedings or to prevent the parties running up huge costs bills. Nor could the court intervene with the purpose of securing public efficiency or even justice from the public point of view. The pursuit of these aims was not the business of the court.

III.  The Rise of Case Management In the latter half of the twentieth century, it became apparent that the partycontrolled, ‘complete justice’ approach to civil procedure had its downside. Left to their own devices, parties (and their lawyers) tended to let litigation proceed at a leisurely pace, and to engage in extensive interlocutory skirmishes.37 Judges were willing to excuse almost any procedural default in order to do justice between the parties. As a result, the cost and time involved in litigation reached levels that made access to the courts impossible – or at least extremely unattractive – for most people.38 At the same time, an increase in litigation resulting from population growth, increasingly complex commercial activity and new levels of legislative regulation placed ever greater pressure on courts. Society’s attitude to government was also changing, with government expected to take a more active role in addressing social and economic problems.39 It was in this context that case management evolved.40 The specific mechanisms of case management (sometimes referred to as ‘caseflow management’) vary between courts and, indeed, between judges and between different types of cases. Typically, though, case management involves active judicial involvement in the pre-trial stages of proceedings.41 Rather than applying rigid rules of procedure, the case managing judge ‘tailors the procedures to be employed 36 See Sir Jack Jacob, The Fabric of English Civil Justice (1987), 12–13; Sir Anthony Clarke MR, ‘The Supercase – Problems and Solutions: Reflections on BCCI and Equitable Life’ (KPMG Forensic’s Annual Law Lecture 2007, London, 29 March 2007). 37 See, eg, Justice Andrew Rogers, ‘The Managerial or Interventionist Judge’ (1993) 3 Journal of Judicial Administration 96; Maureen Solomon, ‘The Rationale for Court Leadership: Insights From the US Experience’ in Courts Advisory Council, Victoria, Caseflow Management in Australian Courts (November 1988), 96, 98; Lord Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (June 1995) 7–8. 38 See, eg, AAS Zuckerman, ‘A Reform of Civil Procedure – Rationing Procedure Rather than Access to Justice’ (1995) 22 Journal of Law and Society 155; Lord Woolf (n 37) 9–15. 39 See Justice DA Ipp, ‘Judicial Intervention in the Trial Process’ (1995) 69 Australian Law Journal 365. 40 See Robert F Peckham, ‘The Federal Judge as a Case Manager: The New Role in Guiding a Case from Filing to Disposition’ (1981) 69 California Law Review 770, 770. 41 In some systems (‘docket’ systems) each case is allocated to an individual judge at the outset; in others (‘wheel’ systems) responsibility for the case is passed from judge to judge. See A ­ ustralian Centre for Justice Innovation, ‘The Timeliness Project: Background Report’, Access to Justice Paper 31 (2013).

The Rise of Case Management  81 to the individual case’.42 At case management hearings, the case managing judge is able to make orders about the procedural steps that the parties are to take – such as pleadings, discovery and the gathering of evidence – and to set timetables for the completion of these steps. Case management may also extend beyond the pretrial stages into the conduct of the trial itself, with judges guiding the way in which evidence and argument are presented. Case management turns on its head the principle of party control. Once litigation is understood as involving public justice and public efficiency, the principle of party control becomes untenable. It is unrealistic (and probably unreasonable) to expect parties to litigation to modify their litigation behaviour for the good of the public. Andrew Higgins explains: The absurdity of [party control] becomes obvious when transplanted to the management of other public services: it would be akin to patients deciding when they would have their operations and how long they would stay in hospital; or parents deciding how many hours of tuition their children should receive. Users of public services are not well placed to manage them efficiently or fairly.43

If the goals of public justice and public efficiency are to be pursued, responsibility for the conduct of litigation must shift from the parties to a public authority. Under a case management regime, the judge becomes responsible for the progress of litigation.44 Instead of being passive and aloof, the case managing judge assumes an active role.45 The judge can initiate procedural steps, help define the issues for resolution, and give parties ‘feedback’ about their cases.46 The ‘case management’ movement began in the United States in the 1960s, as a response to increasing caseloads and the consequent backlogs of cases.47 Unlike the Judicature Acts, case management did not begin as the result of legislative action. Nor was it the result of a single seminal case.48 Case management in the US was a ‘judge-driven reform’.49 It developed court by court, judge by judge and case by case as a pragmatic response to the challenges faced by courts whose ­growing

42 Michael Legg, Case Management and Complex Civil Litigation (Federation Press, 2011) 5. 43 Andrew Higgins, ‘The Costs of Case Management: What Should Be Done Post-Jackson?’ (2010) 29 Civil Justice Quarterly 317, 324. 44 See Maureen Solomon, Caseflow Management in the Trial Court (American Bar Association Commission on Standards of Judicial Administration, 1973) 2–3; Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (1996). 45 See ED Elliott, ‘Managerial Judging and the Evolution of Procedure’ (1986) 53 University of Chicago Law Review 306; Judge William W Schwarzer, ‘Case Management in the Federal Courts’ (1996) 15 Civil Justice Quarterly 141. 46 Master Evan Bell, ‘Judicial Case Management’ (2009) Judicial Studies Institute Journal 76, 102. 47 See Judge Irving R Kaufman, ‘Courts in Crisis’ (1966) 52 American Bar Association Journal 1026; Judith Resnik, ‘Managerial Judges’ (1982) 96 Harvard Law Review 374, 397–99. 48 Although some cases (notably Ketteman v Hansel Properties Ltd [1987] AC 189, discussed below) have been influential. 49 Justice GL Davies, ‘Civil Justice Reform in Australia’ in Adrian AS Zuckerman (ed), Civil Justice in Crisis (Oxford University Press, 1999) 166, 194.

82  A Brief History of Justice and Efficiency in Civil Procedure workloads were not matched by greater resources.50 Writing of the American experience, ED Elliott observes: What makes the managerial judging movement coherent is not so much the existence of specific techniques on which all managerial judges agree. Rather, managerial judges are distinguished by common themes in their rhetoric. Managerial judges believe that the system does not work; that something must be done to make it work; and that the only plausible solution to the problem is ad hoc procedural activism by judges.51

Many of the themes underlying the case management movement crystallised in 1987, in the influential speech of Lord Griffiths in Ketteman v Hansel Properties Ltd.52 Ketteman concerned an application to amend pleadings. On the ‘complete justice’ approach to procedure, exemplified by Cropper v Smith,53 amendments were allowed as a matter of right, so long as any prejudice to opposing parties could be cured by an order for costs. This was consistent with the idea that procedure should aim to do justice between the parties: if the amendment was necessary to ensure that the real issues were ventilated, it must be allowed. It was also consistent with the principle of party control: it was for the parties to decide how to frame their case, and at what pace to run the litigation. In Ketteman, Lord Griffiths departed from this approach. His Lordship said that, ‘whatever may have been the rule of conduct a hundred years ago’,54 courts were no longer under any obligation to allow late amendments. On the contrary, whether to allow an amendment was a matter for the judge’s discretion, to be guided by the judge’s ‘assessment of where justice lies’.55 ‘Many and diverse’ factors were relevant to this discretion.56 One significant factor was the effect of the amendment on the other party to the case. Lord Griffiths rejected the traditional view that an order for costs could cure any prejudice: [J]ustice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other.57

This passage reflects a more sophisticated understanding of doing justice between the parties. But Lord Griffiths also invoked much broader considerations: Another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the 50 Justice Ronald Sackville, ‘The Future of Case Management in Litigation’ (2009) 18 Journal of ­Judicial Administration 211, 213. 51 See Elliott (n 45) 309 (emphasis in original). 52 Ketteman v Hansel Properties Ltd [1987] AC 189, 220. 53 Cropper v Smith (1884) 26 Ch D 700. See discussion above at 77. 54 Ketteman v Hansel Properties Ltd [1987] AC 189, 220, referring to Clarapede & Co v Commercial Unions Association (1883) 32 WR 262. 55 Ketteman v Hansel Properties Ltd [1987] AC 189, 220. 56 Ibid 220. 57 Ibid 220.

The Rise of Case Management  83 i­nterests of the whole community, legal business should be conducted efficiently. We can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age.58

This view introduces public efficiency and public justice as legitimate aims of civil procedure. The influence of this view was not limited to England; Lord Griffiths’ judgment has been described as the single event which has led the courts in [Australia] to expressly to take into account the needs of other litigants and the public in carrying out the exercise of the relevant judicial discretion.59

To this point, Australian civil procedure had largely followed that of England. But Australian courts proved to be, in general, earlier and more enthusiastic adopters of case management than their English counterparts. The differences in the ­development of case management in the two countries are traced in chapters seven and eight. Despite its widespread adoption, case management has its critics. Case ­management is supposed to save time and cost and increase rates of settlement. Yet there is very little data on the efficacy of case management.60 The empirical research that has been conducted has failed to show that case management reduces costs, although it has resulted in swifter resolutions.61 Case management also places demands upon the court by requiring considerable time and effort on the part of judges.62 Proponents of case management acknowledge these difficulties but claim that case management delivers an overall net benefit to parties and to the system.63

58 Ibid 220. 59 Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543, 553 (Clarke JA), referring to GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710, 716 (Samuels JA); State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1993) 29 NSWLR 487, 494–95 (Gleeson CJ); Byron v Southern Star Group Pty Ltd (1995) 123 FLR 352, 353 (Kirby P); Sali v SPC Ltd (1993) 67 ALJR 841, 843–34. 60 There have been repeated calls for empirical research to assess the effects of case management: Australian Government Productivity Commission, Access to Justice Arrangements Inquiry Report Volume 1, Report no 72 (2014) 72 (recommendation 25.4); Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000), [6.30]. 61 James S Kakalik et al, Just, Speedy and Inexpensive? An Evaluation of Judicial Case Management under the Civil Justice Reform Act (Rand, 1996); John Peysner and Mary Seneviratne, The Management of Civil Cases: The Courts and Post-Woolf Landscape (UK Department of Constitutional Affairs, DCA Research Series 9/05, November 2005) 65–68, 71. 62 Sir Gerard Brennan, ‘Key Issues in Judicial Administration’ (1996) 6 Journal of Judicial Administration 138, 139–40; IR Scott, ‘Caseflow Management in the Trial Court’ in AAS Zuckerman and Ross Cranston (eds), Reform of Civil Procedure: Essays on ‘Access to Justice’ (Clarendon Press, 1995) 1, 18. 63 Craig Down, ‘Crying Woolf? Reform of the Adversarial System in Australia’ (1998) 7 Journal of Judicial Administration 213, 220; Lord Woolf (n 37) 17; Acting Justice of Appeal Ronald Sackville, ‘Mega-Lit: Tangible Consequences Flow From Complex Case Management’ (2010) Law Society Journal 47.

84  A Brief History of Justice and Efficiency in Civil Procedure There are also concerns about the compatibility of case management functions with the traditional role of the court.64 In her classic critique of case management, Judith Resnik invokes the ancient and enduring imagery of Justice as a goddess with scales, sword and blindfold to explain some key features of the judicial role: The goddess herself – aloof and stoic – represents the physical and psychological distance between the judge and the litigants. Sometimes described as a virgin, Justice is unapproachable and incorruptible. The scales reflect evenhandedness and absolutism. The sword is a symbol of power and, like the scales, executes decisions without sympathy or compromise. Finally, the blindfold protects Justice from distractions and from information that could bias or corrupt her. Masked, Justice is immune from sights that could evoke sympathy in an ordinary spectator.65

Managerial judging, Resnik argues, threatens to change qualitatively the judicial role, removing the distance between judge and litigant and exposing the judge to a wealth of untested information about the case in advance of trial. Rather than simply determining the parties’ legal rights based on evidence and legal argument, case managing judges must ‘consider the parties’ litigating strategies’, and make decisions dictating the future course of the litigation.66 The overall effect is to strip the goddess Justitia of some of her defining features: ‘Although the sword remains in place, the blindfold and scales have all but disappeared.’67 In short, the role of a case-managing judge is far removed from that of an ‘aloof and stoic’ arbiter of legal rights and liabilities.

IV. Conclusion The story of civil procedure over the last 150 years is one of constant change. From the pre-Judicature Acts world of ‘complexities and technicalities, anomalies and absurdities’,68 to the managerial judging of the late twentieth century, procedure has developed in response to the needs of the justice system and the community. It is hard to argue with Judith Resnik’s observation that ‘[t]he history of procedure is a series of attempts to solve the problems created by the preceding generation’s procedural reforms’.69 What does this brief history tell us about efficiency and justice in civil ­procedure? Pre-Judicature Acts English civil procedure lent itself to both i­ njustice

64 See, eg, Steven S Gensler, ‘Judicial Case Management: Caught in the Crossfire’ (2010) 60 Duke Law Journal 669. 65 Resnik (n 47) 383. 66 Ibid 393. 67 Ibid 431. 68 Jacob (n 2) 194–95. 69 Judith Resnik, ‘Precluding Appeals’ (1985) 70 Cornell Law Review 603, 624.

Conclusion  85 and inefficiency. But post-Judicature Acts procedure pursued justice between the parties to the virtual exclusion of other goals. With the rise of case management, judicial decisions on procedure began to acknowledge that procedure had other objectives, including public justice and public efficiency. By the early 1990s, civil procedure in both Australia and England was poised between a commitment to ‘complete justice’ and the pragmatic pursuit of other objectives. The next two chapters will consider the progress of civil procedure in each country from this point.

7 The Current Position in England Until the early 1990s, English and Australian civil procedure ran along generally similar tracks. From that point, the two jurisdictions took different paths, albeit reaching a similar destination: case management is now dominant. Chapters seven and eight chart the journey of England and Australia respectively to that destination. The story of civil procedure in England must, for the purposes of this book, be told in two parts. Civil procedure in general has gone through major changes, brought about by the Woolf and Jackson reforms. These reforms have forced case management and the principle of proportionality to the fore; a painful transition for some sections of the legal community. On the other hand, complex commercial litigation occupies a distinctive place in English civil procedure. Specialised systems of courts and procedure have been developed to deal with complex commercial litigation in a tailored fashion. This has not always happened in tandem with broader developments in the civil justice system.

I.  Civil Procedure in General By the early 1990s, England was, like other jurisdictions, experiencing the familiar problems of cost and delay in civil litigation. Although several reports had recommended a more interventionist judicial role and the adoption of case management principles,1 these had made little impact on practice. Against this background, the Woolf reforms attempted to change things.

A.  The Woolf Report In 1994, the Lord Chancellor commissioned the Master of the Rolls, Lord Woolf, to report on the civil justice system. The resulting reports were to prove to be 1 Including the Evershed Committee (Committee on Supreme Court Practice and Procedure, Final Report (Cmd 8878, 1953); Report of the Review Body of the Chancery Division of the High Court (Cmd 8205, 1981); Hilary Heilbron and Henry Hodge, Civil Justice on Trial – A Case for Change (General Council of the Bar and Law Society, 1993). For discussion of these and other reports, see John Sorabji, English Civil Justice after the Woolf and Jackson Reforms: A Critical Analysis (Cambridge University Press, 2014) 17–21.

Civil Procedure in General  87 landmarks in English civil justice.2 The procedural philosophy underlying the reports embodied a profound departure from the ‘complete justice’ approach. This ‘revolutionary’3 new philosophy can be described as ‘proportionate justice’.4 Woolf explicitly recognised that justice on the merits was no longer the only aim of civil procedure, and that objectives of efficiency for the parties, and for the justice system as a whole, were also legitimate. As the title of the reports indicated, securing access to justice was a key objective. The Woolf reports mark the point at which English civil procedure began to expand its objectives to include what are labelled in this book as ‘public justice’, ‘public efficiency’ and ‘efficiency for the parties’. The tangible manifestation of this new philosophy was a new set of rules, coming into force on 26 April 1999: the Civil Procedure Rules (CPR).5 The keystone of the CPR is rule 1.1 – the overriding objective: (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. (2) Dealing with a case justly includes, so far as is practicable— (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate— (i) (ii) (iii) (iv)

to the amount of money involved; to the importance of the case; to the complexity of the issues; and to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; and (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

Although the overriding objective purports to be directed towards dealing with cases ‘justly’, it incorporates elements that are referred to in this book as ‘efficiency for the parties’6 and ‘public justice’7 as well as justice between the parties.8 The overriding objective makes it clear that procedure can, and should, be directed towards multiple goals. The interviews on which this book is based shed some light on the significance of the overriding objective, both at the time of its introduction and in the long term. A note of caution is required here. We can expect judges who agree 2 Lord Woolf, Access to Justice: Final Report (1996) (the ‘Woolf Report’); Lord Woolf, Access to Justice: Interim Report (June 1995). 3 Sorabji (n 1) 2. 4 Ibid 2–3, referring to A Clarke, The Future of the CPR (District Judges’ Annual Conference, Warwick 25 June 2009) [15]. 5 Civil Procedure Act 1997 (UK); Civil Procedure Rules 1998 (UK). 6 This can be seen in the aspiration to save expense and deal with the case expeditiously and proportionately. 7 By allotting each case ‘an appropriate share of the court’s resources’. 8 Specifically, by ensuring the parties are on an equal footing and that the case is dealt with fairly. A concept of justice between the parties is also inherent in the concept of dealing with cases ‘justly’.

88  The Current Position in England to ­participate in an interview for a research project on case management of mega-litigation to be inclined towards a more active approach to procedure; their views are not necessarily representative of the wider judiciary. Several participants were current or former members of the Commercial Court, which has long employed case management principles. In light of this, it is not surprising that several participants thought the approach set out in the overriding objective was consistent with the approach they were already taking, rather than influencing day-to-day decisions:9 It’s a lot of words to say what we’ve always done.10 Do I knowingly think ‘Aha! The overriding objective!’ No I don’t. … I just regard it as obvious.11 I don’t think about it very often, I have to tell you. I hope it’s sort of ingrained in my DNA.12 The overriding objective is motherhood and apple pie.13

One participant’s response, when asked how the overriding objective affected their approach to mega-litigation, indicated that the overriding objective was useful because it aligned with the participant’s existing procedural philosophy: It’s at the heart of it. … In my view the key element is balance, and [in the overriding objective] I have set out for me a set of factors which I can refer to when taking decisions about getting that balance right. That’s what I do.14

Another participant thought that, although the overriding objective was ‘in one sense, … pretty banal’, ‘actually I think it has had a sort of long-term effect on judges’ thinking. So they are more concerned to balance the different things that you find stated in it.’15 Another said the CPR had changed attitudes in terms of proportionality. Parties used to think they could frankly do what they liked in litigation. They controlled litigation. Now it’s clear the court controls it. And they could spend what money they wanted to spend, really, and it would be recoverable if it was reasonable … and that has now changed.16

Others found that the overriding objective could be useful to explain to the parties why the judge was taking a strict approach – for example: [T]he Civil Procedure Rules are good because they give power to your elbow on things like proportionality so you can say to somebody, in the nicest possible way, on a case management point, ‘you’ve got five minutes to make this point’.17

9 Participant

E2, Participant E5, Participant E9 and Participant E11 interviews. E2 interview. 11 Participant E5 interview. 12 Participant E11 interview. 13 Participant E4 interview. 14 Participant E12 interview. 15 Participant E10 interview. 16 Participant E1 interview. 17 Participant E4 interview. Similar views were expressed by Participant E2 and Participant E9. 10 Participant

Civil Procedure in General  89 Another explained how the overriding objective added flexibility to procedural rules: It’s a very useful principle because it can enable you, if need be, to as it were, get out of jail free. If there seems to be some, what shall we say, not quite prohibition, but difficulty of doing what you want in a particular rule, you can always go back to the overriding objective and therefore try and, perhaps, get around the side of the rule by invoking the overriding objective.18

Consistent with the mission statement of the overriding objective, the CPR gave courts extensive case management powers.19 Prior to the Woolf Report, case management was not unheard of in England, but it was certainly not widely ­practised; a passive judicial role was still the norm. Participant E7 explained how the report proposed a fundamental change in the judicial role: In the past, the role had been painted in rather negative colours. And [the Woolf Report] said ‘you’ve got to be using primary colours very vividly. And you’ve got to really get hold of the litigation and ensure that justice is done. And that’s your responsibility.’

The Woolf reforms set out a bold new regime for civil justice in England. But its implementation was no easy matter. Changing the litigation culture from ‘complete’ or ‘substantive’ justice to ‘proportionate’ justice required a fundamental change of the mindset that had become entrenched by over a century of devotion to complete justice. John Sorabji has identified two types of opposition to the reforms. On the one hand, ‘traditionalists’ interpreted the overriding objective as doing no more than making explicit what was already the implicit goal of procedure: to decide cases justly, in the sense of giving effect to the substantive law.20 On this reading, the elements of the overriding objective relating to public justice and efficiency for the parties were very much subordinate to the goal of justice between the parties.21 Traditionalists failed to recognise that the Woolf reforms had made any fundamental changes; they just carried on as usual. On the other hand, ‘rejectionists’ understood that the Woolf reforms embodied a new philosophy of procedural justice, but rejected that philosophy as contrary to the most cherished values of the English justice system.22 The traditionalist and rejectionist reactions should not be wholly surprising. As explained in chapter six, the principles of party control and justice on the merits were not merely matters of practice or habit; they were manifestations of deep convictions regarding the role of courts in a liberal democratic society. ­Nonetheless, neither the traditionalist nor the rejectionist view embraced the Woolf reforms, making their implementation inconsistent and often ineffective.



18 Sir

Richard Aikens interview. Part 3. 20 Sorabji (n 1) 130–34. 21 See, eg, B v B [2005] EWCA 237. 22 Sorabji (n 1) 220–29. 19 CPR

90  The Current Position in England These problems are exemplified in the approach taken to the regime for relief from sanctions for non-compliance. Part of the new focus on case management was a new regime of strict enforcement of compliance with court rules. CPR r 3.8 provided that a sanction for failure to comply with a rule, practice direction or court order applied unless the defaulting party applied for and obtained relief from the sanction. CPR r 3.9 set out nine factors for the court to consider in determining whether to grant relief from sanctions. This regime was intended to curb sloppy practices and promote a culture of compliance. Instead, it created endless opportunities for satellite litigation, with relief from sanctions sought as a matter of course, leading to extensive arguments about the application of the broad discretionary criteria in CPR r 3.9.23 Ten years after their implementation, it was generally recognised that the Woolf reforms had not achieved their goal of reducing the cost and time involved in civil litigation.24 Procedure was no less complex than before the reforms. In requiring more intense activity earlier in the litigation, the reforms had tended to ‘front load’ costs for litigants.25 The extent to which trial courts had accepted the new philosophy of the rules varied, with traditionalist and rejectionist views appearing at both the trial and appellate level. Adrian Zuckerman argues that the fault lay not with the design of the CPR but with the failure of courts to implement them according to the spirit of the overriding objective.26

B.  The Jackson Report In November 2008 – less than 10 years after the CPR had come into force – Sir Anthony Clarke MR commissioned Lord Justice Jackson to report on the costs of civil litigation.27 This report led to significant revisions to the CPR, largely aimed at implementing the new philosophy of the Woolf reforms more effectively. Among Jackson’s recommendations was a renewed emphasis on a concept already present in Lord Woolf ’s formulation of the overriding objective: proportionality. Jackson recommended that disproportionate costs should be disallowed on an assessment of costs, even if they were reasonably incurred.28 He also ­identified that judges were often failing to take a robust approach to case 23 Adrian Zuckerman, ‘Litigation Management under the CPR: A Poorly-Used Management Infrastructure’ in Deirdre Dwyer (ed), The Civil Procedure Rules Ten Years On (Oxford University Press, 2009) 89; Michael Legg and Andrew Higgins, ‘Responding to Cost and Delay Through Overriding Objectives – Successful Innovation?’ in Colin B Picker and Guy I Seidman, The Dynamism of Civil Procedure: Global Trends and Developments (ebook, Springer, 2016) 157, 161–62. 24 See, eg, Sorabji (n 1) 201. 25 Tamara Goriely, Richard Moorhead and Pamela Abrams, More Civil Justice? The Impact of the Woolf Reforms on Pre-Action Behaviour, Law Society and Civil Justice Council Research Study 43 (2002); Lord Chancellor’s Department, Further Findings: A Continuing Evaluation of the Civil Justice Reforms (2002). 26 Zuckerman (n 23) 89. 27 Lord Justice Jackson, Review of Civil Litigation Costs: Final Report (2009) (the ‘Jackson Report’) 1 [1.1]. 28 Ibid ch 3.

Civil Procedure in General  91 management.29 In particular, Jackson pointed to failure to enforce compliance with rules and orders as a source of excessive cost and delay.30 Jackson invoked the High Court of Australia’s decision in Aon31 as a laudable example of a ‘much tougher attitude’ to case management.32 Prior to the Jackson reforms, CPR r 3.9 prescribed a non-exhaustive, nine-factor ‘laundry list’33 of factors that judges could take into account when deciding whether to relieve a party of sanctions for non-compliance. Post-Jackson, CPR r 3.9 still enabled the court to consider ‘all the circumstances of the case, so as to enable it to deal justly with the application’, but only two non-exhaustive factors are listed, both of which have a strong efficiency focus. CPR r 3.9(1) now reads: (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.

A relatively ‘unheralded’34 amendment to the overriding objective, not a­ ctually recommended in the Jackson Report but certainly in line with its spirit, was ­introduced in April 2013. CPR r 1.1 now reads: (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable— (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate— (i) (ii) (iii) (iv)

to the amount of money involved; to the importance of the case; to the complexity of the issues; and to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders.35

These amendments made it clearer than ever that justice between the parties is no longer the only concern, and that efficiency objectives must be taken seriously. 29 Ibid ch 39. 30 Ibid 397–98. 31 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, discussed in chapter eight. 32 Jackson Report (n 27) 397 [6.6]. 33 Legg and Higgins (n 23) 162. 34 Sorabji (n 1) 214. 35 New additions in italics.

92  The Current Position in England The Jackson reforms were less significant for mega-litigation than for most litigation. The Jackson Report identified specific classes of litigation in which costs were a problem,36 but also reported general satisfaction with the procedures employed in complex commercial cases and made minimal recommendations in respect of those cases.37 This was largely because the site of much mega-­litigation, the Commercial Court, had already adopted case management practices, as explained later in this chapter. The significance of the Jackson reforms, for the purposes of this book, is that they indicate a shift to a philosophy of procedure that places greater emphasis on the objectives of public justice, public efficiency and efficiency for the parties. The significance of the Jackson approach to relief from sanctions for noncompliance has been considered by the Court of Appeal in Mitchell v News Group Newspapers Ltd38 and Denton v TH White Ltd.39 Mitchell was an appeal from a refusal to grant relief from sanction for failure to file a costs budget on time.40 Lord Dyson MR, delivering the judgment of the Court, explained that the amendments to CPR r 3.9, which singled out efficiency, proportionality and enforcement as relevant considerations, ‘reflected a deliberate shift of emphasis. These considerations should now be regarded as of paramount importance and be given great weight.’41 While other circumstances could still be relevant, they were generally to be given less weight.42 His Lordship then acknowledged explicitly that the Jackson reforms and the overriding objective were intended as ‘a shift away from exclusively focusing on doing justice in the individual case’.43 The ‘needs and interests of all court users’ – or as it would be described in this book, public justice – were to be taken into account in case management.44 Relief from sanction would generally be refused unless the non-compliance was trivial or, in the case of a non-trivial default, if there was a ‘good reason’ (not including the pressure of work or the overlooking of a deadline) for non-compliance.45 Application of the Mitchell test proved problematic.46 Just seven months after Mitchell was handed down, the Court of Appeal in Denton took the opportunity to ‘explain’ Mitchell, with Lord Dyson MR and Vos LJ noting that Mitchell had been ‘misunderstood’47 and ‘the subject of criticism’.48 These criticisms included that the

36 Including

personal injury, intellectual property and housing disputes. Report (n 27) ch 27. 38 Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 (‘Mitchell’). 39 Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926 (‘Denton’). 40 Costs budgets were another product of the Jackson reforms: see CPR rr 3.12–3.14. 41 Mitchell (n 38) 804 [36]. 42 Ibid 804 [37]. 43 Ibid 805 [38]. 44 Ibid 805 [39]. 45 Ibid 805–06 [40]–[41]. 46 See Legg and Higgins (n 23) 166. 47 Denton (n 39) 3931 [3]. 48 Ibid 3930 [3]. 37 Jackson

Civil Procedure in General  93 category of ‘trivial’ breaches was unduly narrow; that the Mitchell test placed too much weight on efficiency considerations; that it punished defaulting parties too harshly; and that it encouraged unco-operative behaviour.49 In Denton, the Court of Appeal allowed appeals from three separate decisions of trial courts purporting to apply the Mitchell approach to CPR r 3.9. Lord Dyson MR and Vos LJ, while affirming that Mitchell was ‘substantially sound’,50 acknowledged that trial courts required clearer guidance, and set out a three-stage test.51 This test considered in turn the seriousness of the non-compliance (as opposed to whether or not it was ‘trivial’), the reasons for non-compliance, and the circumstances of the case. In this third stage, the efficiency factors specifically identified in the revised CPR r 3.9 were to assume ‘particular importance’ but their Lordships denied that they should have ‘paramount importance’.52 A ‘nuanced approach’, taking into account all the circumstances of the case, was what the rule required.53 The guidance provided by Denton was muddied somewhat by the separate judgment of Jackson LJ (the author, of course, of the report from which the amendment to CPR r 3.9 flowed). His Lordship denied that the two efficiency factors identified in CPR r 3.9 should be given any special importance; he adopted the Bar Council’s submission that these factors should ‘have a seat at the table, not … the top seats at the table’.54 Both judgments in Denton appear to represent a slight retreat from the robust approach to case management endorsed in Mitchell. The brief period between Mitchell and Denton, as well as the result in Denton (overturning three firstinstance applications of CPR r 3.9) indicate the difficulties the English courts have had in adjusting to the post-Jackson regime.

C.  The Human Rights Act Civil procedure in England has also been influenced by the right to a fair trial in Art 6 of the European Convention on Human Rights. Since 2000, the Human Rights Act 1998 (UK) has made Art 6 directly applicable in English Courts.55 Article 6 provides, relevantly: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 49 Ibid 3935 [21]. 50 Ibid 3935 [24]. 51 Ibid 3935–08 [24]–[38]. 52 Ibid 3937 [32] (emphasis added). 53 Ibid 3937–08 [36]–[38]. 54 Ibid 3944 [85]. 55 For an analysis of the influence of Art 6 on English civil procedure, see Neil Andrews, The Three Paths of Justice: Court Proceedings, Arbitration, and Mediation in England (Springer ebook, 2012) 26–40. At the time of writing, the effect of the future withdrawal of the UK from the European Union (‘Brexit’) on the Human Rights Act 1999 was yet to be determined.

94  The Current Position in England In England, Art 6 may have more significance in relation to criminal or public law proceedings than mega-litigation. This was borne out in the interview data. Participants reported that Art 6 had little or no influence on the conduct of complex civil litigation.56 This was not because participants did not see a fair trial as important; rather, it was because they regarded the standard procedures in English courts as more than adequate to meet the requirements of Art 6. The point was made succinctly by one participant, who said the influence of Art 6 on complex civil litigation was Almost nothing. I mean, I think because in the English courts we probably think we’ve been the architect of fair trials.57

One possible influence of Art 6 may, surprisingly, be to justify the use of more robust case management in mega-litigation. The European Court of Human Rights has held that Art 6 implicitly guarantees access to courts for the determination of civil or criminal claims, albeit this right of access is not unlimited.58 As explained in chapter four, devoting court time to mega-litigation diverts resources from other cases. It could, therefore, conceivably be argued that strict limits on the way parties to mega-litigation run their cases is justified in order to preserve access to justice for other litigants.

II.  Complex Litigation The progress from the pre-Woolf to the post-Jackson days is the most prominent narrative of contemporary English civil procedure. But for the purposes of this book, another, parallel story is equally important: procedure in complex ­commercial cases in England has followed its own path.

A.  The Commercial Court For centuries, London has been both a global centre of commerce and the cradle of the common law. It follows that London has long been a locus of commercial litigation. Since 1895, much of this litigation has taken place in the Commercial Court. The Commercial Court was created because of a shared perception amongst judges, the legal profession, and the commercial community that commercial ­litigation required judges with commercial expertise.59 The Commercial Court 56 Participant E1, Participant E3, Participant E8, Participant E10 and Participant E11 interview. 57 Participant E3 interview. See also Participant E12 interview: ‘It’s rare to find there’s something that Art 6 would bring about that our own concepts of natural justice and our own Civil Procedure Rules haven’t already thought of.’ 58 Golder v UK (1975) 1 EHRR 524. 59 On the origins of the Commercial Court, see Sir Anthony Colman, Victor Lyon and Philippa Hopkins, The Practice and Procedure of the Commercial Court (Informa, 6th edn, 2008) ch 1.

Complex Litigation  95 has a proud tradition of trying complex commercial disputes efficiently and effectively. It has been at the vanguard of procedural reform; from its inception, the ‘hallmark of the court was procedural innovation aimed at greater efficiency’.60 For example, the 1895 ‘Notice as to Commercial Causes’ which established the Commercial Court contained a remarkably early example of judicial case management: all interlocutory applications in the list were to be heard by one of the two judges allocated to the list.61 The Commercial Court has always maintained close links with the legal profession and the business community, especially through the Commercial Court Users Committee.62 This Committee includes solicitors, barristers and representatives of major repeat litigants in the Court. The Commercial Court has a tradition of welcoming user feedback and making constant improvements to its procedure. Today, the Commercial Court falls under the umbrella of the recently created Business and Property Courts,63 although it remains part of the Queen’s Bench Division. It is based in the Rolls Building, a state-of-the-art facility opened in 2011. Fourteen judges are currently allocated to the Commercial Court, although these judges may continue to do work outside the Commercial Court. Commercial Court judges are chosen for their commercial expertise, and have included some of the most illustrious names in common law, including Lords Atkin, Wright, Devlin, Diplock, Goff and Bingham.64 The Commercial Court has jurisdiction in ‘commercial claims’, defined in CPR r 58.1(2) as any claim relating to (a) a business document or contract; (b) the export or import of goods; (c) the carriage of goods by land, sea, air or pipeline; (d) the exploitation of oil and gas reserves or other natural resources; (e) insurance and re-insurance; (f) banking and financial services; (g) the operation of markets and exchanges; (h) the purchase and sale of commodities; (i) the construction of ships; (j) business agency; and (k) arbitration.

60 Ibid 7. 61 High Court of Justice, Queen’s Bench Division, ‘Notice as to Commercial Causes’ (February 1895). 62 See HM Courts and Tribunals Service, The Commercial Court Guide (10th edn, 2017) (‘The Commercial Court Guide’), 9; Colman, Lyon and Hopkins (n 59) ch 2. 63 See Courts and Tribunals Judiciary, The Business and Property Courts of England and Wales: Advisory Note, 27 September 2017, available at https://www.judiciary.gov.uk/announcements/ the-business-and-property-courts-of-england-and-wales/. 64 See Courts and Tribunals Judiciary, ‘About Us’, https://www.judiciary.gov.uk/you-and-thejudiciary/going-to-court/high-court/queens-bench-division/courts-of-the-queens-bench-division/ commercial-court/about-us/.

96  The Current Position in England Most claims in the Commercial Court – at least 70 per cent – involve at least one foreign party.65 The Commercial Court has been a leader in civil procedure. One interview participant said Commercial Court judges had been case managing matters ‘for decades’66 (long before the Woolf Report) and that the overriding ­objective articulated an approach already well accepted in the Commercial Court. The Commercial Court engages in rigorous case management67 and all pre-trial hearings are before judges, rather than Masters.68 Although the Court does not invariably run on a docket system (that is, a system in which the management of each case is allocated to a single judge), the Listing Office endeavours ‘to ensure a degree of judicial continuity’,69 and parties can apply for a designated judge to be appointed to manage a case.70

B.  The Long Trials Working Party The nature of the Commercial Court’s jurisdiction and the internationally renowned expertise of its judges make it a natural forum for mega-litigation (at least of the commercial kind with which this book is primarily concerned). In the mid-2000s, concerns were raised – most prominently by the Governor of the Bank of England in a speech at the Lord Mayor’s Banquet71 – about the time and money spent on two mega-litigation cases in the Commercial Court, which had dragged on for years before ultimately collapsing.72 In response, the Long Trials Working Party was formed under the auspices of the Users Committee. Its members included judges of the Commercial Court, barristers, solicitors and representatives of KPMG and the Royal Bank of

65 Portland Communications, Who Uses the Commercial Court? – 2017 https://portlandcommunications.com/publications/who-uses-the-commercial-court-2017/. Earlier studies put the figure above 80 per cent: Eva Lein et al, Factors Influencing International Litigants’ Decisions to Bring Commercial Claims to the London Based Courts Courts (Ministry of Justice Analytical Series, 2015) 10. 66 Participant E9 interview. Participant E3 also recalled case management being employed in the Commercial Court before the Woolf reforms. 67 See The Commercial Court Guide (n 62) 23–38. 68 Practice Direction 58 to the CPR, § 1.2. 69 See The Commercial Court Guide (n 62) 26. 70 See ibid 26. 71 See Judiciary of England and Wales, Report and Recommendation of the Commercial Court Long Trials Working Party (December 2007) 13–14 [21] (‘Long Trials Working Party Report’). 72 The two matters were the BCCI and Equitable Life cases, both of which were discontinued before trial. The history of both cases is described in Sir Anthony Clarke MR, ‘The Supercase – Problems and Solutions: Reflections on BCCI and Equitable Life’ (KPMG Forensic’s Annual Law Lecture 2007, London, 29 March 2007). For a detailed account of the BCCI litigation, see Adrian Zuckerman, ‘A Colossal Wreck – The BCCI-Three Rivers Litigation’ (2006) 25 Civil Justice Quarterly 287.

Complex Litigation  97 Scotland.73 The Working Party found that the CPR already contained the tools needed to manage litigation efficiently, but these tools were often not used ­effectively (or at all).74 It recommended either placing limits, or encouraging judges to place limits, on various stages of litigation, including pleadings,75 ­disclosure,76 witness statements,77 expert evidence,78 written arguments79 and oral evidence.80 A central recommendation was the creation, at an early stage of proceedings, of a judicially settled list of issues, which would become a ‘key procedural tool’ for managing the case.81 The overall vision of the Working Party’s report was for early, intense and strict judicial case management, co-operation between the parties, and a sharp focus on the issues. The recommendations of the Working Party were implemented swiftly and appear to have been successful. Today, it is rare for the trial of even a very complex case in the Commercial Court to run more than 12 weeks.82 The smooth implementation of the Working Party’s reforms may be contrasted with the resistance that the Woolf and Jackson reforms encountered, as discussed earlier. This may be because the Working Party’s reforms were very much user-driven. The impetus for the report was dissatisfaction in the business community about the length and cost of commercial litigation, and the Working Party included users of the Commercial Court as well as judges. The story of procedure in the Commercial Court, then, is quite different from that in England more generally. The Commercial Court has been keen to innovate and has embraced case management. The processes of case management in the Commercial Court are quite different from those that apply in other courts after the Woolf and Jackson reforms.83 Most of the specific case management processes prescribed in the CPR have no application in the Commercial Court;84 instead, The Commercial Court Guide sets out the key elements of case management in the Commercial Court.85 Space does not permit parsing of the differences between procedure in the Commercial Court and elsewhere;86 suffice to say that the procedures are consistent with the overriding objective of the CPR, but are tailored to the needs of cases in the Commercial Court.



73 Long

Trials Working Party Report (n 71) 4. 17 [34]. 75 Ibid 21–24. 76 Ibid 27–28 [68]. 77 Ibid 30 [75]. 78 Ibid 32 [83]. 79 Ibid 49 [142]. 80 Ibid 51 [150]. 81 Ibid 23–24 [51]–[54]. 82 See The Commercial Court Guide (n 62) 73–74. 83 Colman, Lyon and Hopkins (n 59) 71. 84 CPR r 58.13. 85 The Commercial Court Guide (n 62) Part D. 86 For such a discussion, see Colman, Lyon and Hopkins (n 59), especially ch 5. 74 Ibid

98  The Current Position in England

C.  The Financial List In 2015, a further specialised jurisdiction, another natural jurisdiction for mega-litigation matters, was created. The Financial List is a joint initiative of the Commercial Court and the Chancery Division of the High Court of Justice, which aims to ‘provide fast, efficient and high quality dispute resolution of claims related to the financial markets’.87 The key feature of the Financial List is that a judge with special expertise in financial markets will be allocated to each case at the first case management conference, will manage the case from that point on, and will generally hear the trial as well.88 As at January 2018, there were 11 nominated judges of the Financial List: a mix of judges of the Commercial Court and the Chancery Division. The criteria for inclusion of a claim in the Financial List are that the claim principally relates to certain financial matters; is for more than £50 million; and requires ‘particular expertise in the financial markets’ or ‘raises issues of general importance to the financial markets’.89 Many of the claims that meet these criteria will also fall within the description of mega-litigation developed in chapter four; certainly they will be high-value claims, and often factually complex. It is too early to evaluate the success of the Financial List. For present purposes, the Financial List is interesting because it is an example of court administrators responding to a perceived need for special treatment of a class of litigation by utilising case management carried out by judges with specialist expertise.

D.  Mega-Litigation Outside the Commercial Court and Financial List This book focuses on commercial disputes between sophisticated, well-resourced litigants. Many of the cases in the Commercial Court and Financial List fit this pattern. But mega-litigation can also occur in other divisions of the High Court. As noted in chapter four, mega-litigation can include cases in which there is an inequality of arms, or in which non-commercial issues are at stake. Claims of this type are likely to be commenced outside the Commercial Court or Financial List. These may include, for example, product liability cases with many claimants, or human rights cases. It is important to note the view expressed by one English judge, who was not a judge of the Commercial Court.90 This participant expressed concern that ‘there is a sort of gap appearing between all this Rolls Royce stuff that goes on in the Rolls



87 HM

Courts and Tribunals Service, Guide to the Financial List (October 2015) [1.3]. [6.1]. 89 CPR r 63A.1(2). 90 Participant E11 interview. 88 Ibid

Conclusion   99 Building and what everybody else has to manage elsewhere’. For this participant, the gap was ‘quite geographical’, with a sharp contrast between the Rolls Building (home of the Commercial Court) and the Victorian Gothic building that houses the Royal Courts of Justice: Well, they have much better buildings, they have better IT systems, they have judges who have more time to write up judgments at the end of the day, there’s much less pressure I think on hearing times. I think if you are a mega-litigant and you turn up [in the Commercial Court], you say you are going to need 50 days, you might have a bit of scratching of your chin and be told, well, maybe it’s down to 45. But I don’t think anybody’s going to seriously challenge you because, you know, it will be ‘this is good for UK PLC. We want big cases to come here and spend 50 days.’ If you’re in this … building … we’re constantly kind of pressuring down time e­ stimates, keeping the fees down, you’re not having all the disclosure that you want, it just feels to me – and this is an impression – is that we are a bit tighter on things.91

These comments are important because they indicate limits on the generalisability of findings about the management of mega-litigation in the Commercial Court: techniques that are effective in the Commercial Court may not be practical elsewhere. This participant’s remarks also add a dimension to my observation, in chapter four, that the relationship between justice and efficiency may be different in non-commercial mega-litigation cases. It may be that these cases are less wellresourced that their commercial counterparts. However, it must be borne in mind that this was the view of one participant; I am not aware of other evidence that either supports or contradicts this impression.

III. Conclusion English civil procedure has experienced tectonic changes over the last two decades, with the Woolf and Jackson reforms profoundly reorienting the respective roles of the parties and the court. Although case management is now widely accepted as the norm in English courts, this change has been accompanied by sustained resistance and criticism. This only serves to highlight the ease with which the Commercial Court has been able to implement strong case management practices, and the degree of acceptance and collaboration on the part of Commercial Court users. Of course, reform of this kind is much easier when dealing, as the Commercial Court does, with a relatively small group of users and a homogeneous case load, than it is across the entire civil jurisdiction of England and Wales. There is also the suggestion, from the interview with Participant E11 quoted above, that commercial cases



91 Participant

E11 interview.

100  The Current Position in England are well supported within the justice system because of the economic benefits to the City of London and the UK generally. Also important, for the purposes of this book, is the special place of complex commercial litigation in the English courts. The positive desire to attract this litigation to London has led to the creation of specialist jurisdictions with tailored procedures and expert judges. This is largely in contrast to Australia, as we will see in chapter eight.

8 The Current Position in Australia The experience in Australian courts has been different from that in those of England. In England, case management was imposed on trial courts from above, by way of the seminal Woolf and Jackson Reports. In Australia, the opposite was true. Judges in trial courts were champions of case management, with court rules and the High Court following behind. Australia has no equivalent to the Commercial Court; procedure in complex commercial litigation has largely ­developed in tandem with civil procedure in other cases. This chapter begins with an overview of the Australian court system, and then traces the rise of case management from the early 1990s to the present day.

I.  The Australian Court System A. Overview Australia is a federal nation, comprised of a federal (‘Commonwealth’) government, six States and two self-governing territories. Each of these jurisdictions has its own court system, but Australia has a single common law1 and each of the State courts is vested with jurisdiction in federal matters,2 as well as in matters within the jurisdiction of the courts of other States and territories.3 This means Australia is relatively free of jurisdictional technicalities, and a plaintiff usually has a choice of several courts in which to commence litigation. Each State and Territory has a Supreme Court of general jurisdiction and at least one level of lower courts. The federal court system includes the Federal Court (which has no upper limit on its monetary jurisdiction), the Federal Circuit Court and the Family Court. At the apex of the Australian court system sits the High Court, which hears appeals from all intermediate appellate courts, as well as having some original jurisdiction.

1 Lange v Australian Broadcasting Corp (1997) 189 CLR 520, 563; Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 581 [99]. 2 Judiciary Act 1903 (Cth) s 39. 3 Complementary legislation exists in each of the States and Territories. See, eg, Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).

102  The Current Position in Australia A discussion of the context in which Australian courts operate would not be complete without reference to constitutional constraints. Australia’s written Constitution contains no Bill of Rights, and no express ‘due process’ clause analogous to the 14th amendment to the United States Constitution. However, there are implied Constitutional requirements relating to procedure in both federal and State courts, sometimes referred to as a guarantee of ‘due process’.4 At the federal level, the High Court has held there is a strict separation of federal judicial power from the legislative and executive branches of government: federal courts may only exercise federal judicial power, and federal judicial power may only be exercised by courts.5 These restrictions have implications for procedure. It is ‘an essential feature of judicial power … that it be exercised in accordance with the judicial process’.6 And the ‘courts’ that have the exclusive authority to exercise federal judicial power are courts acting in accordance with ‘the essential requirements of the curial process, including the obligation to act judicially’.7 In Re Nolan; Ex parte Young, Gaudron J identified the general features of the judicial process that attract the protection of the ‘due process’ principle: [T]hose features include open and public enquiry (subject to limited exceptions), the application of the rules of natural justice, the ascertainment of the facts as they are and as they bear on the right or liability in issue and the identification of the applicable law, followed by an application of that law to those facts.8

Another key statement of the content of the due process principle is that of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Bass v Permanent Trustee Co Ltd: Judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the evidence led against them.9

Within these broadly drawn limits, the Constitution leaves considerable latitude for procedural innovation. The High Court has repeatedly confirmed that ­Parliament, and courts themselves, are able to introduce new procedures, and 4 Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 580 (Deane J); Fiona Wheeler, ‘The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia’ (1997) 23 Monash University Law Review 248; Fiona Wheeler, ‘Due Process, Judicial Power and Chapter III in the New High Court’ (2004) 32 Federal Law Review 205; Will Bateman, ‘Procedural Due Process under the Australian Constitution’ (2009) 31 Sydney Law Review 411. 5 R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254. 6 Polyukhovich v Commonwealth (1991) 172 CLR 501, 703 (Gaudron J). See also Harris v Caladine (1991) 172 CLR 84, 150 (Gaudron J); Re Nolan; Ex parte Young (1991) 172 CLR 460, 496; Nicholas v The Queen (1998) 193 CLR 173, 208 (Gaudron J); Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, 359 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). 7 Leeth v Commonwealth (1992) 174 CLR 455, 486-7 (Deane and Toohey JJ). See also Polyukhovich v Commonwealth (1991) 172 CLR 501, 607 (Deane J). 8 Re Nolan; Ex parte Young (1991) 172 CLR 460, 496. 9 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, 359 (citations omitted).

The Australian Court System  103 change the rules of evidence and procedure.10 In practice, the most significant effect of the due process principle on civil procedure may be the entrenchment of the rules of procedural fairness in federal courts. Assessments of the content of the due process principle often begin by recognising that, at the very least, the principle protects the rules of procedural fairness or natural justice.11 Procedural fairness encompasses two different rules: the hearing rule and the rule against bias. While the due process principle, at the federal level, permits innovation in civil procedure, any encroachment on the rules of procedural fairness may raise a constitutional issue. The source and content of the constitutional restrictions on court procedure in State courts are different from those that operate at the Federal level. There is no strict separation of powers at the State level.12 However, there is an implied ­constitutional limit on the functions that may be conferred on State courts. This limit, first recognised in Kable v Director of Public Prosecutions (NSW),13 requires that State courts retain their ‘institutional integrity’.14 While this doctrine is complex and contested, it is well established that institutional integrity requires courts to be independent and impartial,15 to observe the rules of procedural ­fairness16 and open justice,17 and to give reasons for their decisions.18 It is difficult to explain the constitutional limits on Australian court procedure in any more precise terms; Gummow J observed that these constitutional concepts are ‘insusceptible of further definition in terms which necessarily dictate future outcomes’.19 It may be that the ‘due process’ principle has little observable effect on the day-to-day work of Australian courts, but it does form an inescapable part of the context in which they operate.

B.  Mega-Litigation in Australia Australia’s economy is, of course, much smaller than that of England. Nonetheless, Australia has a substantial economy with global links, and has seen its share of mega-litigation. 10 See In Re Judiciary and Navigation Acts (1921) 29 CLR 257, 266 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ); Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1, 12, 17; Williamson v Ah On (1926) 39 CLR 95; Nicholas v The Queen (1998) 193 CLR 173, 188–89, 202–03, 225, 260, 273. 11 See, eg, Wheeler (n 4) 251; James Stellios, The Federal Judicature: Chapter III of the Constitution (LexisNexis Butterworths, 2010), 292. 12 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Wainohu v New South Wales (2011) 243 CLR 181, 192 [7]. 13 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. 14 See, eg, North Australian Aboriginal Justice Agency v NT (2015) 256 CLR 569, 593–95 [39]–[40], 617–20 [119]–[127], 637–38 [183]–[184]. 15 See, eg, ibid 594 [39] (French CJ, Kiefel and Bell JJ). 16 See, eg, ibid 594 [39] (French CJ, Kiefel and Bell JJ). 17 Wainohu v New South Wales (2011) 243 CLR 181, 208–09 [44] (French CJ and Kiefel J). 18 Ibid. 19 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 618 [103].

104  The Current Position in Australia Without exception, mega-litigation matters will be commenced in either the Federal Court or the Supreme Court of a State or Territory. The Federal Court is perhaps the preferred forum for major commercial disputes due to the perceived commercial expertise of some of its judges and its individual docket system. The Supreme Courts of New South Wales and Victoria deal with more major commercial litigation than their counterparts in the less populous States, but the other States are certainly not immune from mega-litigation: Bell Group20 and Duke Group,21 thought to be the two longest civil trials in Australian history, took place in the Supreme Courts of Western Australia and South Australia respectively. Some jurisdictions have established commercial lists, presided over judges with specialist commercial expertise.22 While these lists generally achieve high levels of user satisfaction, they do not have the long history of England’s Commercial Court, and their procedures have not been developed in the same way, over decades of collaboration with users.

II.  Case Management in Australia A.  The Quiet Revolution Australian courts were early and enthusiastic adopters of case management; perhaps the first common law country outside the US to embrace this approach.23 Case management in Australia was very much a judge-driven innovation: individual judges took it upon themselves to respond to time and resource pressures by taking control of cases. Gummow J has described the approach that prevailed in the Federal Court from its inception: ‘We did not call it case management. We called it getting on with it.’24 By the late 1980s, this broader perspective had

20 Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1. 21 Duke Group (in liq) v Pilmer (1998) 73 SASR 64. 22 Examples include the Federal Court’s corporations list (see Federal Court of Australia, Administrative Notice NSW 2 – Corporations Matters, 15 May 2014; Federal Court of Australia, Administrative Notices QLD 1 – Corporations Matters, 1 August 2011; Federal Court of Australia, Administrative Notice WA 1 – Corporations Matters, 25 September 2009), the Supreme Court of New South Wales’ commercial list (see Supreme Court of New South Wales, Practice Note No SC Eq 3 – Supreme Court Equity Division – Commercial List and Technology and Construction List, 12 October 2008), the Supreme Court of Queensland’s Commercial List (see Supreme Court of Queensland, Practice Direction Number 21 of 2016: Commercial List), the Supreme Court of South Australia’s special classification list (see Supreme Court Civil Supplementary Rules 2014 (SA) ch 6) and the Supreme Court of Victoria’s Commercial Court (see Supreme Court of Victoria, Practice Note No 10 of 2011 – Commercial Court). 23 IR Scott, ‘Caseflow Management in the Trial Court’ in AAS Zuckerman and Cranston (eds), Reform of Civil Procedure: Essays on ‘Access to Justice’ (Clarendon Press, 1995) 1, 6; Ann Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of New South Wales, 2003), 2. 24 Gummow J added ‘You did not get PhDs in the subject either’: Transcript of Proceedings, GMCA Pty Ltd v Black & Decker Inc [2007] HCATrans 662 (14 November 2007), 14.

Case Management in Australia  105 reached the level of a ‘quiet revolution’25 in Australian civil procedure. The following quotes from intermediate appellate cases of the early 1990s demonstrate the extent to which Australian courts had subscribed to case management’s central tenets: transfer of control from the parties to the court, and prioritisation of public justice and public efficiency: The courts of this State are overloaded with business, and their workload has, over a number of years, increased at a greater rate than any increase of the resources made available to them. The inevitable consequence has been delay. This, in turn, has brought an increasing responsibility on the part of judges to have regard, in controlling their lists and cases that come before them, to the interests of the community, and of litigants in cases awaiting hearing, and not merely to the concerns of the parties in the instant case. … The flow of cases through the courts of this State is now managed by the judiciary, and not left to be determined by the parties and their lawyers.26 It is now well recognised throughout the judicial system that courts owe it to the community to adopt and apply effective procedures in order to make maximum use of the resources committed to them and to contain, so far as possible, the escalation of costs and delay.27

While trial and intermediate appellate courts were quick to endorse case management’s reorientation of the priorities of civil procedure, one final ingredient was missing: the High Court’s endorsement of case management.

B.  The High Court on Case Management: Sali and JL Holdings The High Court first considered case management in 1993, in Sali v SPC Ltd.28 In Sali, the High Court dismissed an appeal from a refusal to grant an adjournment. The settled principles on adjournments were typical of the ‘complete justice’ approach: if an adjournment was necessary to avoid serious injustice to a party, then it ought to be granted unless doing so would cause injustice to another party to the case.29 In Sali, Brennan, Deane and McHugh JJ explained that these principles ‘were formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become’.30 The emergence of case management

25 Peter A Sallman, ‘The Impact of Caseflow Management on the Judicial System’ (1995) 18 University of New South Wales Law Journal 193, 194. 26 State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487, 493–94 (Gleeson CJ) (citations omitted). 27 United Motors Retail Ltd v Australian Guarantee Corporation Ltd (1991) 58 SASR 156, 158 (King CJ). 28 Sali v SPC Ltd (1993) 67 ALJR 841. 29 Ibid 843 (Brennan, Deane and McHugh JJ), 843–49 (Toohey and Gaudron JJ). 30 Ibid 843.

106  The Current Position in Australia meant that courts’ exercise of procedural discretion could take into account factors such as ‘the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties’.31 While Sali seemed to signal the High Court’s endorsement of case management, the ‘pendulum swung the other way’32 less than four years later, in JL Holdings.33 This was an appeal from a refusal by Kiefel J in the Federal Court to allow a late amendment of pleadings that would have raised a new defence. In refusing permission to amend, Kiefel J explained that the ‘most relevant consideration’ was that the amendment would put the trial date in jeopardy.34 The Full Court of the Federal Court dismissed an appeal, relying on Sali: Unless we are to mouth the repeated cautions about discretionary judgments, case management, efficiency, practice and procedure, and the advantages of the managing judge, only to ignore them when it comes to the crunch, this appeal must be dismissed.35

But the High Court allowed an appeal from the Full Court’s decision, holding that the amendment ought to have been allowed. In doing so, the High Court backed away from its endorsement of case management in Sali. Dawson, Gaudron and McHugh JJ explained that nothing in Sali could be taken as meaning that case management principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.36

While accepting that case management may have a role to play, their Honours rejected the notion that the pressures of modern litigation have changed the fundamental goal of procedural law. That goal, which draws on deeply held beliefs about the role of courts, is to do justice. For Dawson, Gaudron and McHugh JJ, ‘justice’ appeared to mean only justice between the parties. Their Honours concluded with something of a slap in the face for proponents of case management: Justice is the paramount consideration in determining an application such as the one in question. … Case management, involving as it does the efficiency of the procedures of

31 Ibid 843–44 (Brennan, Deane and McHugh JJ) (emphasis added). A similar view was taken by Toohey and Gaudron JJ (at 849). 32 Justice John P Hamilton, ‘Thirty Years of Civil Procedure Reform in Australia: A Personal ­Reminiscence’ (2005) 26 Australian Bar Review 258, 265. 33 JL Holdings (1997) 189 CLR 146 (‘JL Holdings’). 34 JL Holdings Pty Ltd v Queensland [1996] FCA 779. 35 Quoted in JL Holdings (n 33) 154. 36 JL Holdings (n 33) 154 (emphasis added).

Case Management in Australia  107 the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.37

Once again, this passage reflects a strong view about the proper role of the court. Doing justice, in the sense of determining all the issues between the parties, is ‘paramount’. Dawson, Gaudron and McHugh JJ, despite accepting that efficiency considerations are ‘relevant’, did not appear to envisage a significant role for these considerations, except in ‘extreme’ cases. If justice is paramount in this way, then it may be, as the Full Court of the Federal Court suggested,38 that judges can do no more than pay lip service to the desirability of efficiency and the interests of other litigants.

C.  Reaction to JL Holdings As a resounding statement, by Australia’s highest court, about the role of case management, JL Holdings immediately became the leading Australian authority on the exercise of procedural discretions. Dorne Boniface and Michael Legg calculate that the case was applied or followed over 120 times.39 The case was generally understood as requiring procedural decisions to be based on ‘the dictates of justice as between the parties to the litigation only, without reference to outside considerations’40 such as the interests of other litigants or the efficient use of court resources. That is, it narrowed the courts’ focus to a purely party-centred understanding of justice. JL Holdings had a significant effect on the way in which courts managed litigation,41 and on the ‘culture and mentality’ of the legal profession.42 Judges were reluctant to enforce time limits or orders strictly, lest the decision be overturned on appeal by applying JL Holdings.43 Lawyers came to expect judicial indulgence of relaxed timeframes, and ran their cases accordingly. Finkelstein J observed that JL Holdings had had a ‘chilling effect’ on the courts’ ability to control proceedings: [JL Holdings] has, in my view, unfairly hamstrung courts. Almost every day a defaulting party seeks the court’s indulgence to extend time, amend documents or obtain some

37 Ibid 154. 38 JL Holdings Pty Ltd v Queensland [1996] FCA 779, in the passage quoted above. 39 Dorne Boniface and Michael Legg, ‘Cost, Delay and Justice: The High Court of Australia Recognizes the Importance of Case Management in Civil Litigation – Aon Risk Services Australia v Australian National University’ (2010) 39 Common Law World Review 157, 165. 40 Hamilton (n 32) 265. 41 See Camille Cameron, ‘New Directions for Case Management in Australia’ (2010) 29 Civil Justice Quarterly 337, 338–39. 42 See Aon (2009) 239 CLR 175, 222–23 (Heydon J), quoting Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 753, [15] (Bryson J). 43 Hamilton (n 32) 265.

108  The Current Position in Australia other allowance (often not for the first, second or third time) and successfully relies on JL Holdings to obtain relief.44

While Australian courts were coming to terms with JL Holdings, the ­Australian Law Reform Commission was undertaking a major four-year review of the federal civil justice system. The terms of reference called for the Commission to assess procedure in the adversarial system having regard to ‘the need for a simpler, cheaper and more accessible legal system’.45 This inquiry culminated in the landmark Managing Justice report in 2000.46 The title of the report was no accident; one of the ‘major thrusts’ of the report was that ‘our civil justice system works best when judicial officers take an active role in managing proceedings from an early stage.’47 The Managing Justice report, therefore, was a further step that pushed case management to the fore. Meanwhile, courts and legislatures thought the effects of JL Holdings serious enough to justify the enactment of rules and legislation making explicit the role of efficiency considerations. In the 10 years following JL Holdings, almost every Australian jurisdiction introduced a provision, in either legislation or court rules, setting out the ‘overriding objective’ or ‘overarching purpose’ of procedural rules.48 These provisions traced their ancestry to similar provisions in the US49 and, of course, England.50 The overriding objectives make it clear that doing justice between the parties is not the sole aim of procedure. Section 37M of the Federal Court of Australia Act 1976 (Cth) is an example of a typical overriding objective provision: (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible.

44 Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623 [3]. For a more moderate assessment of the effect of JL Holdings, see Inamed Development Company v Morton Surgical Pty Ltd (2007) 73 IPR 308, 310 (Gyles J). 45 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) 3. 46 Ibid. 47 Ibid 62 [1.14]. 48 Federal Court of Australia Act 1976 (Cth) s 37M (commenced on 1 January 2010); Civil Procedure Act 2005 (NSW) s 56; Supreme Court Civil Rules 2006 (SA) r 3; Court Procedures Rules 2006 (ACT) r 21 (since 2015, the relevant provision has been Court Procedures Act 2004 (ACT) s 5A); Uniform Civil Procedure Rules 1999 (Qld) r 5; Civil Procedure Act 2010 (Vic) s 7; Supreme Court Rules (NT) r 1.10; Supreme Court Rules 2000 (Tas) r 141A. Western Australia had introduced a similar p ­ rovision in 1993: Rules of the Supreme Court 1971 (WA) O 4B. For a discussion of these rules, including some examples of their application, see Michael Legg, Case Management and Complex Civil Litigation (Federation Press, 2011) 23–43. The relevant provisions are described as either the ‘overarching purpose’, ‘overriding objective’, ‘overriding obligation’ or simply ‘objects’ of civil procedure rules. In this book, for convenience, the term ‘overriding objective’ is used when speaking of these provisions generally. It is clear that JL Holdings was part of the impetus, in Australia, for these provisions: see Legg (ibid) 43. 49 Federal Rules of Civil Procedure 1937 (US) r 1. 50 Civil Procedure Rules 1998 (UK) r 1.1, discussed in chapter seven at section I.

Case Management in Australia  109 (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court’s overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

This provision invokes all four of the aims of civil procedure identified in chapter two of this book: justice between the parties;51 public justice;52 efficiency for the parties;53 and public efficiency.54 Section 37M(3) provides that all procedural rules ‘must be interpreted and applied, and any power conferred or duty imposed by them … must be exercised or carried out, in the way that best promotes the overarching purpose’. Section 37N places a duty on parties and their legal representatives to conduct proceedings in a manner consistent with the overarching purpose. Many Australian interview participants spoke favourably about overriding objective provisions.55 For one Federal Court judge the overriding objective set out the ‘playing field’ on which the litigation was to take place: We’ve got 37M. Our playing field is set. We know that there’s an obligation on the Court, on the practitioners, and on the parties to conduct litigation in a particular way. And we all know that at the end of the day there has to be a just result, we’ve just got to get there in the most efficient and economic way possible. And so that means under our rules we can do just about anything we like in order to achieve that. And everyone says, ‘well, isn’t that a bit open-ended?’ Well, no, it’s not, because the playing field is set. And if we do something outside the playing field we get into trouble.56

On this view, the overriding objective ensures fairness. It is not unfair to take action on efficiency grounds if that action is consistent with the overriding objective and all parties understand, from the outset, their obligations under the Rules. One participant said the overriding objective had made him ‘more confident in engaging in procedural limitations which may affect the parties’,57 while another said that, had the overriding objective been in the legislation at the

51 Federal Court of Australia Act 1976 (Cth) s 37M(1)(a), (2)(b). 52 Ibid s 37M(2)(a) (‘the just determination of all proceedings before the Court’) and (d). 53 Ibid s 37M(1)(b), (2)(e). 54 Ibid s 37M(1)(b) and (c). 55 Michael Black, Ray Finkelstein, Robert McDougall interviews; Participant A6, Participant A8, Participant A9, Participant A4, Participant A5, Participant A15 and Participant A16 interviews. 56 Participant A5 interview. 57 Participant A4 interview.

110  The Current Position in Australia time he presided over a mega-litigation matter, it ‘would have given more encouragement to me …[to take] a rather bolder approach’.58 Participants noted the effect of the overriding objective on breaking down party control of proceedings: Previously we would have taken the view that if a party comes along and says to us ‘we’ve got to have a fair trial’ we’d invariably grant adjournments, allow amendments, let them have more time in terms of interlocutory work. The [overarching purpose] gives us a weapon to limit the parties’ utilisation of the fair trial argument. I think we’ve just got to be satisfied that there is going to be a fair trial, and not always bend to a party’s assertion.59

Some participants said the overriding objective provisions were important because they placed obligations on practitioners: [The overriding objective] has been important in that it casts direct obligations on the practitioners. And of course they are motivated by fear in relation to that, as they should be.60 Now that you’ve got legislative endorsement of case management, the overriding purpose stated, obligations on the parties to assist, and you cannot merely draw [the overriding objective] to their attention but make orders requiring them to do a whole range of things, not least imposing costs sanctions upon them.61 Most people are conscious that under [the overriding objective], they have obligations to the court to assist in the just, quick and cheap resolution of the real issues in dispute. And if you keep on saying that long enough they’ll come around.62 [The overriding objective] says the parties and the lawyers each have duties to cooperate, to assist the Court to achieve the [overriding objective]. So you can look at them and say ‘you’ve both got duties. It’s no good just … saying “oh, it’s up to them to do something”. You’ve both got to cooperate in working out these issues.’63

One participant emphasised the origins of the overriding objective in the Federal Court: it first appeared as a practice note, was then incorporated into the Court Rules, and finally, at the request of judges of the Court (‘we asked for that legislation to go in’), was inserted into the Federal Court of Australia Act 1976 (Cth): The common law, in any event, was probably moving that way … because that’s the way judges were seeing things. … The overarching purpose confirms quite explicitly an approach that was already being adopted.64

Ray Finkelstein, who was involved in drafting the legislation, said the overriding objective expressed, in legislation, the approach he was already taking, describing 58 Participant A16 interview. 59 Participant A4 interview. Participant A9 also noted that the provisions were useful because they made it clear ‘that it’s not just a matter of “because one party wants it, it should happen”’. 60 Participant A6 interview. 61 Participant A16 interview. 62 Robert McDougall interview. 63 Participant A15 interview. 64 Michael Black interview.

Case Management in Australia  111 the enactment of some of the statutory provisions as ‘trying to get Parliament to legislate what I was doing’. In Australia, then, the overriding objective was not revolutionary: it reflected existing – and emerging – practices and attitudes to case management. Participants referred to the overriding objective as ‘useful’,65 as a ‘weapon’,66 a ‘convenient tool’,67 a ‘helpful tool’68 and even a ‘statutory baseball bat’.69 In other words, participants seemed to view the overriding objective less as a source of ­principle than as an instrument which could be used to enforce the judge’s preexisting proactive, interventionist approach to procedure. The overriding objective provisions, then, do not provide an answer to the question of how to reconcile the aims of efficiency and justice; they merely set out the various aims of civil procedure. This, in itself, is important because – as one Federal Court judge pointed out – the aims are explicitly expanded beyond that of doing justice between the parties: I think it’s a useful thing to have in all civil procedure rules or provisions because it emphasises that there are values outside the immediate resolution of the case that are important to civil procedure … Although [the overarching purpose] may sound like empty advertising, it may sound like puffery – ‘this is what we’d like civil procedure to be’ – it actually does embody the principle that it’s not just the immediate matter and the immediate parties that dictate what might be appropriate civil procedure. And I think that is important.70

In sum, Australian participants valued the overriding objective provisions because they are facultative rather than prescriptive: they help judges not by telling them what to do in a given situation, but by freeing them up to do whatever they believe appropriate. The overriding objectives are said to symbolise ‘[t]he triumph of case management in Australia’.71 This triumph would not be complete, however, until the High Court came to the party. It did so in Aon.

D.  Aon: Case Management Rises Again 12 years after JL Holdings, the High Court considered case management again in Aon.72 This time, the pendulum swung back towards efficiency considerations. An intriguing side note concerns Kiefel J. As trial judge in JL Holdings, Kiefel J had



65 Participant

A9 interview. A4 interview. 67 Participant A6 interview. 68 Robert McDougall interview. 69 Participant A15 interview. 70 Participant A9 interview. 71 Acting Justice Ronald Sackville, Foreword to Legg (n 48) v. 72 Aon (2009) 239 CLR 175. 66 Participant

112  The Current Position in Australia made the case management decision that was overturned by the High Court. Since then, she had herself been appointed to the High Court. In Aon, Kiefel J was in a plurality that firmly endorsed case management principles. Aon, like JL Holdings, involved an application to amend pleadings; this time to add a new cause of action, after the trial in a large insurance dispute had commenced. The trial judge allowed the amendment, because it raised ‘real triable issues’.73 The ACT Court of Appeal dismissed an appeal74 and the matter went to the High Court. The High Court unanimously overturned the Court of Appeal’s decision and dismissed the application for leave to amend. All judges of the High Court held that the discretion to amend pleadings was guided by the overriding objective in r 21 of the Court Procedures Rules 2006 (ACT).75 Rule 21 provided that the rules were to be applied ‘with the objective of achieving’ not merely ‘the just resolution of the real issues’76 but also ‘the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties’.77 The High Court considered that r 21 formally recognised the role that case management now plays in procedural decisionmaking. French CJ explained that: the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.78

Applying these principles to the facts, the Court held the amendment ought to have been denied. Aon confirmed that justice between the parties is no longer the only aim of civil procedure in Australia. The importance of public justice is evident in the remarks of Gummow, Hayne, Crennan, Kiefel and Bell JJ that it is a ‘fundamental principle of case management’ that judges must be concerned with ‘other litigants, not just the parties to the case’.79 Public efficiency was also important, at least to French CJ who stated that the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account.80 73 Australian National University v Chubb Insurance Co of Australia Ltd [2007] ACTSC 82, [43]. 74 Aon Risk Services Australia Ltd v Australian National University (2008) 227 FLR 388. 75 CPR r 21 provided, inter alia, that the rules were to be applied with the objective of achieving ‘the just resolution of the real issues in the proceeding’ and ‘the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties’. 76 CPR r 21(2)(a). 77 CPR r 21(2)(b) (emphasis added). 78 Aon (2009) 239 CLR 175, 189 (emphasis added). See also at 211 (Gummow, Hayne, Crennan, Kiefel and Bell JJ). 79 Ibid 212, referring to Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894. 80 Aon (2009) 239 CLR 175, 182. French CJ made further remarks about the use of public resources at 189, 191 and 192.

Case Management in Australia  113 The majority of the High Court held that the reasoning in JL Holdings was wrong, and the case was no longer good authority.81 Not only did the Court effectively overrule JL Holdings, they also called into question several long-accepted principles of civil procedure. One of these was the judgment of Bowen LJ in Cropper v Smith,82 often invoked to support a permissive approach to amendments and other applications. The Court in Aon took a much narrower view of the reach of the case.83 Properly understood, that case did not stand for the proposition that litigants had a ‘right’ to late amendments. Rather, amendment was a matter for the judge’s discretion in each case, taking into account all relevant matters including efficiency considerations.84 Also abandoned was Bowen LJ’s faith in the power of costs orders to overcome prejudice.85 The non-financial strain that litigation places upon parties means that delay could cause prejudice which is not measurable in dollars.86 Finally, the Court in Aon acknowledged that there has been a move away from the principle of party control of proceedings. Gummow, Hayne, Crennan, Kiefel and Bell JJ said: In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.87

Once the Court had adopted a concept of justice that encompassed the interests of the public as well as the parties, there had to be a shift in power from the parties to the court. Aon marked ‘a profound departure’ from the JL Holdings position on the role of case management.88 The High Court acknowledged that case management has changed the landscape of procedural decision-making. This change is partly a consequence of the application of the overriding objective rules. But it also reflects wider changes to the adversarial system and the context in which litigation is contested today. Four years after Aon was decided, the High Court again endorsed a robust approach to case management in Expense Reduction.89 In this case – a dispute about the appropriate course to take after the inadvertent disclosure of privileged 81 Ibid 182, 191 (French CJ), 212, 217 (Gummow, Hayne, Crennan, Kiefel and Bell JJ). 82 Cropper v Smith (1884) 26 Ch D 700, discussed in chapter six at section II. 83 See Aon (2009) 239 CLR 175, 187–88, 206–08, 212–13. 84 Ibid 212–13. 85 See ibid 187–98, 213–14. 86 Ibid 213–14. 87 Ibid 217. See also 188–89 (French CJ). 88 Ronald Sackville, ‘Mega-Lit: Tangible Consequences Flow From Complex Case Management’ (2010) Law Society Journal 47, 48. 89 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 (‘Expense Reduction’).

114  The Current Position in Australia documents – French CJ, Kiefel, Bell, Gageler and Keane JJ reiterated the central message of Aon: In [Aon], it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon … confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.90

The Court also emphasised, again, that case management shifts control of proceedings from the parties to the court: ‘Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court.’91 Together, Aon and Expense Reduction establish that robust judicial case management is not only permitted but, in many cases, required.

III.  Participants’ Views During the interviews on which this book is based, I asked participants to speak about how the events covered in this chapter – especially JL Holdings, the enactment of overriding objectives and Aon – had affected their management of mega-litigation.92 This often led to a discussion of the more general effect of these developments on Australian civil procedure. Participants’ responses revealed two distinct narratives about the effect of the High Court authorities. The first is that these cases have had a significant p ­ ractical effect on day-to-day decision-making. During the time in which it remained authoritative, JL Holdings was an impediment to active case management and efficiency measures: Someone would quote JL Holdings … and you’d be just about duty bound to grant an adjournment or permit an amendment.93 JL Holdings meant that judges were not prepared to step in.94

90 Ibid 321 [51] (citations omitted). 91 Ibid 323 [56] (emphasis added). 92 Most participants had been appointed to the bench before Aon and were thus able to comment on the effect of both JL Holdings and Aon. Some had retired, or been elevated to an appeal court, before or shortly after Aon was decided and therefore had little experience of its effect on trial judges. There was no opportunity to ask participants about their views on the High Court’s decision in Expense Reduction, as this decision was handed down after the interviews were completed. 93 Participant A4 interview. 94 Participant A8 interview.

Participants’ Views  115 [JL Holdings] told us that we couldn’t put case management considerations at the forefront of our dealing with procedural applications.95

For participants who had this experience of JL Holdings, Aon came as a welcome change, allowing judges to take control of cases and to put case management considerations ahead of the wishes of the parties.96 Other participants told a different story, suggesting that judges continued to follow their own approaches to case management regardless of the High Court authorities. One participant said that JL Holdings was used conservatively by people who didn’t want things to happen in their ­litigation. But I think the progressive judges just went on doing it [active case management] anyway.97

Indeed, several participants observed that Aon merely aligned High Court ­authority with existing judicial practice: We had been case managing. … When Aon came in, [it] confirmed the views that we already held.98

Some said the overriding objective provisions were at least as important as, and certainly complementary to, Aon:99 The change in the High Court’s approach with Aon I think has just reflected what the [overriding objective] says. So I think both put together means now we can say with some authority that enough is enough.100 The change in the law [in Aon] was of assistance but in a sense we’d gazumped it by then. The [overriding objective] was part of the landscape … So I don’t think [Aon] affects us much. … I think the [overriding objective was] the more important thing for us.101

On the one hand, then, we see judges who felt fettered by JL Holdings and freed by Aon. On the other, we see judges who simply kept up their robust case ­management practices until the High Court came around to their point of view. What both groups have in common is strong disagreement with the JL Holdings principles, which made justice between the parties the ‘paramount’ consideration, and ­deprecated the role of case management. For some participants, the effect of both JL Holdings and Aon was quite ­minimal, simply because every procedural decision turns on its facts.102 The High

95 Robert McDougall interview. 96 David Harper, Robert McDougall, Participant A8, Participant A15 and Participant A16 interviews. 97 Michael Black interview. 98 Michael Black interview. Ray Finkelstein and Participant A6 expressed similar views. 99 Michael Black, Participant A4, Participant A5 and Participant A16 interviews. 100 Participant A4 interview. 101 Participant A5 interview. 102 Ray Finkelstein and Participant A9 interview.

116  The Current Position in Australia Court authorities provide general principles, but these are not much help when making individual decisions: Aon just tells you certain basic principles. Every case is so intensely different. … So Aon plays very little role in my list.103 We get quoted the same decisions, all the time. And they are important in terms of the statements of principle therein. The actual results, of course, of individual cases are not as important because the spectrum of relevant matters to a discretionary decision is so potentially broad.104

In short, even though High Court decisions can provide general guidance, the task of determining each procedural decision falls back on the discretion of each individual judge. There is, perhaps, a broader lesson to be taken from the reaction of trial courts to the High Court’s decisions in JL Holdings and Aon. The High Court’s guidance has had the capacity to hold back, but not advance, the evolution of civil procedure. The decision in JL Holdings caused problems because it was out of step with the everyday experience of trial courts. The decision in Aon, while welcome, reflected developments in practice and court rules already initiated by trial courts themselves. Innovation in Australian civil procedure has been led by the day-today work of judges in trial courts, not by statements of principle emanating from appeal courts. At best, the High Court’s decisions (such as Aon) have facilitated this evolution. At worst (as in JL Holdings) they have stultified it.

IV. Conclusion The developments analysed in chapters seven and eight demonstrate a shift in the priorities of civil procedure in England and Australia over the last 30 years. The  courts have moved away from an almost exclusive focus on doing justice between the parties in each case. Courts now recognise that litigation is not just a matter for the immediate parties; it affects other litigants and would-be litigants whose access to justice is at stake. To this end, courts have embraced a public perspective on justice. Furthermore, public efficiency has also become relevant to procedural decision-making. Once these broader aims of procedure are accepted, the traditional adversarial approach, based on party control, is no longer acceptable. Case management is the practical manifestation of this shift in thinking about the aims of civil procedure.



103 Participant 104 Participant

A6 interview. A9 interview.

Conclusion  117 The movement towards case management in Australia occurred ‘organically’,105 beginning with judges in trial courts and filtering up through ­practice directions and rules to legislation and the High Court. This contrasts to the experience in England where, case management was imposed on courts from above, by a new set of rules and the sweeping reforms following the Woolf and Jackson Reports. This is the last chapter of Part II of this book. Before moving on, it is worth reflecting that none of the theories, rules, case law, reports or commentary considered in this chapter provide a failsafe way of reconciling the objectives of justice and efficiency for the parties and the public. Indeed, the various shifts in emphasis in England and Australia over the past three decades have showed just how difficult it is for the justice system to settle on an acceptable accommodation of these objectives.

105 Brenda Tronson, ‘Towards Proportionality – The “Quick, Cheap and Just” Balance in Civil ­Litigation’ in Colin B Picker and Guy I Seidman, The Dynamism of Civil Procedure: Global Trends and Developments (ebook, Springer, 2016) 183, 196.

118

part iii Justice and Efficiency in Mega-Litigation

120

9 The Mega-Litigation Judge Part I of this book introduced the problematic place of mega-litigation in the justice system. Part II explored some theoretical and practical approaches to the relationship between public and party-based concepts of justice and efficiency in civil procedure. Part III brings together the ideas developed in Parts I and II, by examining the way in which English and Australian judges reconcile the various aims of civil procedure when dealing with mega-litigation. This chapter begins this process by exploring the general principles that inform judges’ approach to mega-litigation. Chapter ten will identify the way these ­principles are put into practice, providing an overview of the procedural techniques that judges use in mega-litigation. Building on this material, and on the analysis in Parts I and II, chapter eleven will squarely confront the issue of how judges in mega-litigation reconcile the demands of justice and efficiency. This chapter examines the approaches and attitudes that judges bring to mega-litigation. The qualitative research method employed in this book allows for the development of a ‘thick description’1 of the mega-litigation judge. A ‘thick description’ does more than record what a person is doing. It goes beyond mere fact and surface appearances. It presents detail, context, emotion, and the webs of social relationship that join persons to one another.2

In this book, a ‘thick description’ goes beyond a superficial description of the actions that judges perform when presiding over mega-litigation;3 it reveals the context and motivation that inform these actions. This chapter identifies four characteristics that are consistently displayed in judges’ approaches to mega-litigation. The mega-litigation judge is a highly active participant in the preparation and presentation of the case; is creative in finding new ways of dealing with mega-litigation; is flexible in the approach to procedure; and places a high value on fairness. Mega-litigation judges tend to be daring and non-traditional. These characteristics are consistent with the movement towards

1 Clifford Geertz, ‘Thick Description: Toward an Interpretive Theory of Culture’ in Clifford Geertz (ed), The Interpretation of Cultures (Basic Books, 1973) 3. 2 Norman K Denzin, Interpretive Interactionism (Sage, 1989) 83. 3 See Joseph G Ponterotto, ‘Brief Note on the Origins, Evolution, and Meaning of the Qualitative Research Concept “Thick Description”’ (2006) 11 The Qualitative Report 538.

122  The Mega-Litigation Judge active case management, and away from party control, identified in chapters six to eight. Mega-litigation judges seem to be testing the boundaries of this shift, rejecting the premise of party control and taking upon themselves responsibility for the progress of litigation. The identification of these characteristics raises a further question, which is the subject of the latter part of this chapter: to what extent does the management of mega-litigation depends on characteristics personal to each judge?

I.  Characteristics of the Mega-Litigation Judge The qualitative interview data reveals that interview participants, in their role as judges in mega-litigation, tend to share certain characteristics. These were strikingly consistent in both English and Australian judges, with participants using similar language to describe their approaches. Points of notable divergence between English and Australian judges are highlighted as they arise. From this data, it is possible to paint a portrait of what will be referred to in this book as ‘the megalitigation judge’. Interview participants were, to a degree, self-selecting: individuals willing to take part in this project were likely to be concerned about justice and efficiency in mega-litigation, and to believe that they were able to contribute useful insights on the issue. Therefore, the mega-litigation judge portrayed in this chapter does not necessarily reflect every judge who has presided over mega-litigation. Mega-litigation judges tend to be active, creative, flexible and fair in their approach to procedure in mega-litigation. Let us now examine each of these characteristics – which, as we shall see, are interrelated.

A. Active Case management is a staple of modern judicial practice and is particularly ­important in mega-litigation. As early as 1951, the Judicial Conference of the United States’ Prettyman Report on complex litigation recognised that: the efficient conduct of [a complex case] depends in large part upon a skilful and complete pre-trial organization of the proposed evidence, the expected witnesses, and the trial personnel. … The person who must insure that a case of this nature is thoroughly prepared prior to the trial is the trial judge himself. … [O]ne of the tasks of the trial judge in a case of this sort is to make certain, prior to setting the case for trial, that counsel are completely prepared and have efficiently organized their material. This is a task of inquiry and negotiations on the part of the judge and may require considerable patience and persistence.4 4 Judicial Conference of the United States, Procedure in Anti-Trust and Other Protracted Cases (1951), reprinted in (1951) 13 Federal Rules Decisions 41, 65 (emphasis added).

Characteristics of the Mega-Litigation Judge  123 Contemporary publications reiterate the centrality of case management as a means of dealing with complex litigation. The US Federal Judicial Center’s Manual for Complex Litigation takes the position that ‘[f]air and efficient resolution of complex litigation requires at least that … the court exercise early and effective supervision (and, where necessary, control)’.5 The Commercial Court Guide sets out detailed guidelines for case management of commercial litigation, adding that ‘[t]he Court will continue to take an active role in the management of the case throughout its progress to trial’.6 In Australia, Ronald Sackville argues that [v]igorous pre-trial judicial management of mega-litigation … is likely to have a moderating effect on the excesses of the warring parties, if only because even the most resolute of parties or counsel usually cannot afford to ignore entirely the express wishes of the judge.7

The interview data strongly supported the view that active case management is central to managing mega-litigation. Interview participants described their approach to management of mega-litigation as ‘proactive’,8 ‘interventionist’,9 ‘pretty aggressive’,10 ‘very hands-on’11 and ‘brutally robust’.12 This often went hand-in-hand with a rejection of party control: I think judges have to be reasonably interventionist in managing these cases rather than just allowing the litigation to be run entirely by what the parties want to do.13 We are very hands-on. I mean, we are not stuffy. So I’m not very interested, candidly, in solicitors’ correspondence arguing the toss about this, that, and the other. I just want to get to the meat of ‘what is the issue that needs to be grappled with?’14 I was doing what I think all judges should do. That requires more than sitting in court and listening to the parties.15 The procedures and the steps that we put in place from the outset in handling what I’d call mega-litigation in these chambers is that we take control of it. The parties don’t control it. And we keep an active eye on exactly what’s happening.16 The challenge [of case management in mega-litigation] is to be sufficiently on top of it that you can exercise your own judgement as to how it should go forward, against the joint wishes of the parties.17

5 Federal Judicial Center, Manual for Complex Litigation, Fourth (2004), 7. 6 HM Courts and Tribunals Service, The Commercial Court Guide (10th edn, 2017) 33 [D11.1]. 7 Acting Justice Ronald Sackville, ‘Mega-Litigation: Towards a New Approach’ (2008) 8 The Judicial Review 89, 101. 8 Participant A4 and Participant E4 interviews. 9 David Bleby, Participant A4 and Participant E6 interviews. 10 Wayne Martin interview. 11 Participant E5 interview. 12 Participant E1 interview. 13 David Bleby interview. 14 Participant E3 interview. 15 Ray Finkelstein interview. 16 Participant A5 interview. 17 Participant E6 interview.

124  The Mega-Litigation Judge What exactly does this active, interventionist case management involve? Several participants emphasised the importance of case management in the earliest stages of the case.18 One participant explained how early intervention could set the tone: In [a mega-litigation matter], I was much more interventionist at the beginning than the end. I wanted them to know that this wasn’t going to get out of hand, that it was going to be civilised, that I knew what they were up to, and that this wasn’t going to be dealt with with a massive amount of resources … So I was very interventionist at the beginning. Then they got more confident about the kind of things I wasn’t going to listen to and they stopped trying.19

As the matter progresses, the judge continues to keep ‘an active eye on exactly what’s happening’.20 One Australian participant recalled seeing the parties to a mega-litigation matter ‘usually at least once a week, sometimes twice or even more times a week. Just to keep a very close hand on what was going on.’21 These hearings can cover every aspect of the management of the proceedings, from defining the issues to arranging the practical aspects of the trial. In order to make the most of these hearings, the judge must become familiar with all aspects of the case; in the words of one interview participant, ‘at a judicial level you’ve got to know it better than they [the parties] do’.22 The most significant and consistent theme emerging from interview ­participants’ discussion of their case management practices was that an important part – perhaps the most important part – of the role of the managing judge is to help the parties define the issues in mega-litigation.23 The methods used varied between England and Australia. In England’s Commercial Court, the parties are required to prepare an agreed ‘List of Common Ground and Issues’, which is reviewed by the court and used as a case management tool.24 In Australian courts, lists of issues are sometimes used, but this is at the discretion of each case managing judge.25 Some Australian interview participants had devised semi-formal processes, quite similar to the Commercial Court’s List of Common Ground and Issues: You have to engage with the parties from the very outset. So I say to them at the first hearing ‘what are the issues in this case?’ And they get an email from my chambers 18 Participant A5, Participant E2 and Participant E4 interviews. 19 Participant E2 interview. 20 Participant A5 interview. 21 Wayne Martin interview. 22 Participant A5 interview. Participant A4 emphasised the importance of preparation before the directions hearings got underway. Peter McClellan said the judge needed to keep up with the factual material as it came in. 23 Sir Richard Aikens, Michael Black, David Bleby, David Harper, Wayne Martin, Robert McDougall, Participant A5, Participant A6, Participant A8, Participant A15, Participant A16, ­Participant E1, Participant E2, Participant E4, Participant E5, Participant E7, Participant E8 and ­Participant E9 interviews. 24 The Commercial Court Guide (n 6) 27–28 [D.6]. 25 Law Council of Australia and Federal Court of Australia, Case Management Handbook (2nd edn, 2014) 29–30 [5.61].

Characteristics of the Mega-Litigation Judge  125 [before the first hearing] which says ‘You must be in a position to discuss substantively what are the disputed issues of fact and law’ … And we put in place from the very first step an absolute requirement that they identify them up front. And we say to them ‘are they truly in dispute?’ If they are then we’ll prove them, if they’re not then I want to know about it now.26 I think early identification of the issues is really the key to preventing the megalitigation getting out of hand. … We do that through a process we call a strategic ­conference, which is fairly early in the life of the case, we’ll get all the parties and the lawyers and their clients around a table and ask them for an oral presentation on what they see the real issues are and then working out the shortest, most effective path between where we are then and the resolution of those issues.27 One of my approaches in a case is always to require the parties to define the issues and produce an agreed statement in writing. I don’t care if they disagree as to some but I want it there. I’ve always done that and I always will. And I tell them that I’m going to resolve the case according to those issues, so if they don’t put it in that’s their problem.28

More frequently, Australian participants spoke of narrowing the issues through debate at case management hearings. The following quotes are illustrative: I’m a highly active participant in argument. So vigorous debate is my technique of trying to isolate the issues and get parties to abandon what doesn’t matter. … You have to have the ability to take a morass of material and extract from it what it is really the parties are fighting about. Now often you have to take the lead in that by asking questions. Questioning counsel, questioning propositions, telling them what you don’t understand, where you need assistance and so on and so forth.29 It may be … that when the matter first comes before the court we need to look and say ‘you’ve got a 400 page statement of claim here. It goes on and on and says the same thing in 15 different ways. Why? I’m not going to accept it. Go away, identify the issues, and replead it.’ That may nip some things in the bud.30 [The judge will often] have an interaction with the representatives of the parties at an early stage: ‘What do you mean by this? Do you really want to plead this as the ninth possible alternative? How are you going to cater for the possible combinations and permutations that might arise because of the alternative pleadings? Can’t we proceed right to this as the crucial issue? Is there some particular factual question that can be identified as the key and perhaps dealt with before we deal with some of these other questions? Can we identify particular matters on which there’ll be one expert on each side and defer getting any other expert evidence until we’ve resolved this?’31 The parties come to you for the first directions hearing. You start asking what the case is all about and what the defences are, what the issues are, how do we prepare it for trial,



26 Participant

A5 interview. Martin interview. 28 Robert McDougall interview. 29 Participant A6 interview. 30 Robert McDougall interview. 31 Participant A16 interview. 27 Wayne

126  The Mega-Litigation Judge what are we going to need. … You just say ‘what’s this all about? Is it all about this thing in the pleading?’ And I’ve been doing this because you can actually force them, you can say ‘well, I want to know whether this is being defended. What is the answer to this? Why are we taking time up on this?’32

The vigour with which this debate was pursued varied. Some participants said they would do no more than ‘lean on’33 the parties to encourage them to narrow the issues, or that they had an active role in ‘helping the parties to define the issues’34 rather than defining those issues themselves. At the more forceful end of the scale was former Federal Court judge Ray Finkelstein: If I thought that issues were hopeless I simply would not allow the parties to run them. I would say ‘I’ve looked at the point and it has no merit. You are going to lose it.’ So I would shut down the hopeless issues.

The English judges interviewed for this book reported, on the whole, taking a slightly less active role in defining the issues than their Australian counterparts. Many of them agreed that defining and narrowing issues was a key to managing mega-litigation.35 They also agreed that the judge had a role in this process,36 albeit usually expressed in rather measured terms.37 But English participants seemed more inclined than Australian participants to defer to the judgements of the parties and their representatives on issue definition: Bullying the parties doesn’t always get the right answer. You can shout and scream, as a judge, and say ‘I want you to tell me what the issues are’, but if they don’t know and they have no clear route to find out – because there are issues behind the curtain, between the clients and their lawyers, which the judge can’t see.38 I don’t know how far I, uninvited, would expect to weigh in on what the issues are … [I]f you’re at an interlocutory stage, and you know a bit, but not everything, and you’ve got able lawyers, well, to a great extent they can be expected to have worked out what the issues are. And they’re going to know a lot more about it than you do.39

For some judges in the Commercial Court, the respective roles of the parties and judge in defining the issues was shaped by the process of developing a formal list of issues. Sir Richard Aikens explained: Well, in the system that has been developed here, it’s up to the parties to try and produce an agreed list of issues. But the list has to be agreed by the judge. And it is the judge

32 Participant A15 interview. 33 Participant A8 interview. 34 Wayne Martin interview. 35 Sir Richard Aikens, Participant E1, Participant E2, Participant E3, Participant E4 and Participant E9 interviews. 36 Sir Richard Aikens, Participant E3, Participant E4 and Participant E9 interviews. 37 For example, Participant E9 said: ‘The judge can exercise a degree of persuasive power to put the parties off running bad points.’ 38 Participant E3 interview. 39 Participant E10 interview.

Characteristics of the Mega-Litigation Judge  127 that signs it off in the [case management conference]. And so the judge’s view on it is extremely important. And ultimately therefore, it is a court document. And my view is that if it’s not done properly, and it doesn’t capture the issues in the correct way, then it’s the judge’s fault, because he or she should actually have been making sure that it was correct.

These comments were typical of the overall approach of English participants: they saw issue definition as a process in which the parties took the lead and retained ultimate power, but in which judges had considerable influence and ­responsibility. This did not rule out a robust approach to issue definition, as this participant described: [The parties] came up with a list of 30 issues. I said you can have four. I think they came up with four each, they were different, in the end they got it down to three and then I let them have one more.40

As well as helping the parties define the issues, the mega-litigation judge also supervises the procedural progress of the litigation. Case management hearings are an opportunity to plan all procedure aspects of the case, including discovery, interlocutory procedures, alternative dispute resolution, and the conduct of the trial. Chapter ten will outline some of the specific instances in which megalitigation judges become involved in the detailed management of the case. By assuming this active role, the mega-litigation judge takes on a massive outof-court workload. One general criticism of case management is that it requires a lot of work from the judge; a factor that offsets the efficiency gains achieved elsewhere.41 Interview participants acknowledged that active management of mega-litigation was a labour-intensive endeavour.42 One Australian judge told me: The management of mega-litigation is extremely burdensome on a judge … The thing about case management is that to do it properly involves a huge burden on the court. In the olden days when there was no case management it involved no burden on the court – and I suppose that was why it was inefficient.43

As these comments indicate, participants generally accepted the burden of case management as the necessary price of efficiency: It is labour-intensive, but the alternative is a disaster. It’s a disaster for the parties for the cost consequences, it’s a disaster for the parties because they end up addressing issues which may not be in dispute … and it’s a disaster for the judge … because when you come to write the judgment, if you don’t know it I don’t know how you do it. … I actually think that the intensity of the effort in preparation and immediately before trial is essential. Because otherwise I don’t know how you can run it, I don’t know how 40 Participant E2 interview. 41 See discussion in chapter six, section III. 42 David Bleby and Peter McClellan interviews; Participant A4, Participant A5, Participant A6 and Participant A8 interviews. 43 Participant A6 interview.

128  The Mega-Litigation Judge you can control it and I don’t know how you can write a judgment – efficiently. … So I don’t think we’ve got a choice.44 Throughout all this, the one theme that was there was everything’s too long. And it meant you took hours, if not days, going through things. And trying to fish out what was really important. And you realised when you became a judge, you just hadn’t got the time. And when you’re a judge doing a big commercial trial, you’re there on your own, you haven’t got a team of juniors and solicitors who can go and find the relevant paragraph in the relevant witness statement or whatever. You’ve got to sort it all out yourself. And you can’t do that if you’ve got such a morass of material to try and cope with.45

In earlier times, the role of the judge was likened to that of a cuckoo in a clock: appearing briefly when needed, then retreating to chambers, safe in the knowledge that responsibility for the conduct of proceedings rested with the parties.46 The role of a modern mega-litigation judge is fundamentally different. One interview participant said: For me the cuckoo judge is a thing of the past. They don’t exist. This idea that you just walk into court and someone will tell you what the case is about went out with the Ark.47

In a sense, mega-litigation is simply part of the broader movement towards interventionist case management in England and Australia. But in mega-­ ­ litigation, we see case management at its most extreme. Judges are intensely involved at every stage of proceedings. Active case management is seen as indispensable to the effective management of mega-litigation. Judges in mega-litigation are willing to push case management to its limits in a quest to improve efficiency. This quest often leads to innovation. Mega-litigation judges do not just use existing case management techniques: they create new ones.

B. Creative Through the creative development of new techniques, mega-litigation has been a catalyst for some important changes in civil procedure generally. Ross Cranston credits complex cases as ‘the driver for the modern theories of case management which developed in the United States’.48 In Australia, mega-litigation has been at 44 Participant A5 interview. 45 Sir Richard Aikens interview. 46 Justice DL Mahoney, ‘Delay … A Judge’s Perspective’ (1983) 57 Australian Law Journal 30, 35. 47 Participant A5 interview. 48 Ross Cranston, ‘Complex Litigation: The Commercial Court’ (2007) 26 Civil Justice Quarterly 190, 201. Cranston refers, in particular, to 1951’s Prettyman Report (Judicial Conference of the United States, Procedure in Anti-Trust and Other Protracted Cases (1951), reprinted in (1951) 13 Federal Rules Decisions 41). Cf Richard L Marcus, ‘Reassessing the Magnetic Pull of Megacases on Procedure’ (2001) 51 DePaul Law Review 457 (arguing that mega-litigation does not necessarily lead to procedural innovation); Judith Resnik, ‘Changing Practices, Changing Rules: Judicial and Congressional Rulemaking

Characteristics of the Mega-Litigation Judge  129 the forefront of the use of technology in trials.49 And in England, as explained in chapter seven, the Long Trials Working Party developed procedural methods that have served the Commercial Court well.50 As judges develop creative ways of ­dealing with the challenges of mega-litigation, the benefits may flow not only to the management of mega-litigation but also to the justice system as a whole. Many Australian participants approached procedure in mega-litigation in a creative way.51 They described the mega-litigation judge as ‘creative’,52 ‘innovative’,53 ‘lateral thinking’54 and ‘imaginative’.55 On this view, the mega-­ litigation judge is not restricted to choosing from a range of established procedural options; the judge can ‘inven[t] procedures on the run’.56 Mega-litigation judges invent new ways of dealing with discovery and experts; make the most of modern technology; abandon traditional trial structures; and find new uses for old procedures such as splitting trials and taking evidence on commission.57 In contrast, English interview participants did not often describe themselves as creative. There are several possible reasons for this discrepancy between the Australian and English participants. The first is cultural, and necessarily speculative: England may have less of a culture of judicial creativity, or English judges may be more reticent about describing themselves as creative. A second, raised by two English participants,58 is that procedural innovation has been driven by lawyers rather than judges. One judge recalled the following experience of complex ­litigation as a barrister: We devised the process as we went along. … We came up with suggestions for managing the cases. There was no continuity of case management from a judge; we, as litigants, drove the process.59

A third possibility is that innovation in the management of complex litigation in England has tended to occur in a planned, system-wide fashion, at least in the Commercial Court. As explained in chapter seven, the Commercial Court, particularly through its user group, prides itself on adapting its processes to

on Civil Juries, Civil Justice, and Civil Judging’ (1997) 49 Alabama Law Review 133, 188–95 (arguing that procedural innovations developed in complex cases should not necessarily be adopted in ordinary cases). 49 See chapter ten, section IX. 50 Judiciary of England and Wales, Report and Recommendation of the Commercial Court Long Trials Working Party (December 2007), discussed in chapter seven, section III. 51 Michael Black, Ray Finkelstein, Malcolm Lee, Wayne Martin, Robert McDougall, Neville Owen, Participant A5, Participant A6, Participant A8 and Participant A16 interviews. 52 Participant A8 interview. 53 Robert McDougall interview. 54 Wayne Martin interview. 55 Michael Black interview. 56 Neville Owen interview. Participant A6 said: ‘In the case management era, all the rules are man-made as you go along.’ The flexibility of the mega-litigation judge is explored in more detail below. 57 These innovations are discussed in chapter ten. 58 Participant E2 and Participant E3 interviews. 59 Participant E2 interview.

130  The Mega-Litigation Judge contemporary conditions. Having a dedicated commercial court which regularly reviews its processes may remove the need for individual judges to take on their shoulders the responsibility for innovation. In Australia, participants reported that there are few ‘reliable written record[s]’ of the way in which mega-litigation has been handled in the past, leading mega-litigation judges sometimes to feel as though they are ‘reinventing the wheel’.60 English judges, in contrast, have The Commercial Court Guide,61 which is updated regularly, as well as the Report of the Long Trials Working Party.62 Creativity, on the part of an individual judge, involves risk. Reflecting on the unconventional methods he had used to deal with expert evidence in a large competition law case,63 Ray Finkelstein said he was not sure whether the process would have survived an appeal. He was undaunted: I thought that if somebody wanted to appeal, well and good. Because unless judges try something new and run the risk of successful appeal, (in fact I was not even sure what I would do if I was sitting on the appeal court) the system never changes.

Evidently, the creativity of a mega-litigation judge is, to some extent, a personality trait. Not every judge would be willing to take calculated gambles in pursuit of efficiency. But as the English experience shows, creativity need not be left to individual judges; it can be supported by a system that seeks innovation.

C. Flexible As well as creating new procedures, mega-litigation judges adapt existing procedures to fit the circumstances of each case. Participants described their approach to procedure in mega-litigation as ‘flexible’64 and ‘bespoke’;65 they were able to ‘meld’,66 ‘fashion’67 or ‘tailor’68 procedures as needed. The active case management discussed earlier in this chapter facilitates this flexibility. By gaining a deep understanding of the legal, factual and procedural issues in the case at an early stage, the judge can tailor procedures to suit the circumstances.

60 Class Action and Electronic Trial Guide, Federal Court of Australia (2012) (Copy on file with author). 61 The Commercial Court Guide (n 6). 62 Judiciary of England and Wales, Report and Recommendation of the Commercial Court Long Trials Working Party (December 2007). 63 The evidence of approximately 50 experts was taken in a series of round-table conferences, in which the judge led the witnesses, with counsel permitted to ask questions only after the judge’s questioning was complete. The parties were excluded from the conference room, but the hearing was broadcast via CCTV. 64 Wayne Martin interview; Participant A8 interview. 65 Wayne Martin interview. 66 David Harper interview. 67 Participant E9 interview. 68 Neville Owen interview.

Characteristics of the Mega-Litigation Judge  131 To what extent is this flexibility consistent with the existence of prescriptive procedural rules? The range of views expressed by interview participants is succinctly captured by the remark of one participant: ‘the rules didn’t run the show’.69 Similarly, another participant referred to the ‘old saying’ that ‘rules are servants, not masters’.70 An English judge explained that the rules provide a framework in terms of the things you expect to happen and can do. Within them, there is a considerable scope for a judge to have preferences as to how things are done.71

The rules in most jurisdictions give judges broad powers to dispense with compliance with the rules,72 and/or to make any directions appropriate in each case.73 Western Australian Chief Justice Wayne Martin explained how such rules, combined with the use of a docket system, affect the approach to case management: Under our rules, once a case is in the docket-based judge-managed list … we have a rule that says the judge case-manager can do whatever he or she thinks is appropriate in the interests of justice. And then we have a list saying ‘these are some of the orders that a judge manager can make’, and there’s about 30 of them. … So the old prescriptive ‘one size fits all, first you plead then you’ve got 14 days for defence’, we’ve gone away from that entirely. We have a much more flexible, bespoke approach, supervised by a docket case manager.

Sir Richard Aikens expressed a similar view about the role of rules in megalitigation: If a rule says that something has to be done or shouldn’t be done, then you can’t get around it unless the rule itself gives you some kind of discretion. But within the scope of the CPR, then the judge will exercise discretion. And in the Commercial Court, at least, there’s usually a lot of that, that can be brought to bear in these large cases.

Others said: The procedural rules don’t prevent you doing anything. You can do anything you like in these cases really.74 [The CPR] tell you how you can get a small case, frankly, to trial without needing any judicial intervention along the way … But we all know, don’t we, that in the really big cases you just can’t do it that way because there isn’t a one size fits all procedural code. So you have to sort of invent one as you go along.75 69 Participant A10 interview. 70 Participant E9 interview. 71 Participant E10 interview. Participant E9 expressed a similar view. 72 See, eg, Federal Court Rules 2011 (Cth) r 1.34; Court Procedures Rules 2006 (ACT) r 6; Supreme Court Civil Rules 2006 (SA) r 117(2)(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 2.04. 73 See, eg, Civil Procedure Rules (UK) r 3.1(2)(m); Federal Court Rules 2011 (Cth) r 1.32; Court Procedures Rules 2006 (ACT) r 1401; Civil Procedure Act 2005 (NSW) s 61; Uniform Civil Procedure Rules 2005 (NSW) r 2.1; Uniform Civil Procedure Rules 1999 (Qld) r 367; Supreme Court Civil Rules 2006 (SA) r 117; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 1.14(1)(b). 74 Participant E1 interview. 75 Participant E11 interview.

132  The Mega-Litigation Judge Another participant made the point bluntly: The fact is that in mega-litigation there are no rules. In the case management era, all the rules are man-made as you go along. … There are no rules, really. It’s just what I decide.76

But an English participant cautioned against taking this too far: Flexibility is very important. … But I don’t think you throw away the rule book. I think that’s perhaps uncharted territory.77

There is an obvious risk with overreliance on judges making up their own rules in mega-litigation: the risk that each judge will develop their own idiosyncratic practices. This can reduce the consistency and predictability of procedure that parties can expect, and make the efficacy with which a case is handled depend heavily on the identity of the case managing judge. At the extreme end of the scale, errors may be corrected on appeal; but appeal courts are slow to interfere with the exercise of procedural discretion,78 and satellite litigation is not desirable. The risks are perhaps less in a jurisdiction such as the Commercial Court, where there is a shared ethos of managerial judging, and a uniformly high level of commercial litigation experience. In the Supreme Courts of the Australian States, by contrast, there will be greater variation in the approach to case management and the commercial orientation of the judges. If procedure in mega-litigation is largely at the discretion of the individual judge, much depends on the allocation of complex cases to suitable judges.

D. Fair The picture of the mega-litigation judge that has emerged from this chapter so far is of someone who actively, even aggressively, pursues efficiency, unbound by traditional ideas about how courts should act. Are there limits to the mega-­ litigation judge’s pursuit of efficiency? The limit most commonly cited (especially by Australian participants) was the fundamental obligation of the judge to act fairly.79 When asked to identify the limits on judicial intervention and efficiency measures,80 participants 76 Participant A6 interview. 77 Participant E3 interview. 78 Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCACiv 427, [33] (Lawrence Collins LJ); BPP Holdings Ltd v Revenue and Customs Commissioners [2017] UKSC 55, [33] (Lord Neuberger); Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627 (Kitto J); Squire v Rogers (1979) 39 FLR 106, 113–14 (Deane J). 79 Michael Black, David Bleby, David Harper, Malcolm Lee, Peter McClellan, Robert McDougall, Neville Owen, Participant A4, Participant A6, Participant A9, Participant A15, Participant A3 and Participant E11 interviews. 80 This happened at various points of the interviews: when discussing the theories of Summers and Dworkin (see chapter five), when discussing the aims of civil procedure and the tension between justice and efficiency; and when discussing particular techniques used in mega-litigation.

Characteristics of the Mega-Litigation Judge  133 consistently nominated procedural fairness as the ‘touchstone’,81 the ‘minimum right of procedure’82 and as a ‘fundamental’83 value of courts. For some participants the importance of procedural fairness rested on the institutional characteristics of courts: one participant said that procedural fairness was ‘what distinguishes courts from other decision-making bodies’.84 For Neville Owen, the concern for procedural fairness had an internal source: ‘it’s just ingrained, it’s just part of my being’. One English participant described a similar ‘instinctive’ preference for ­procedural fairness: I think my instinctive assessment is probably more towards ensuring that the parties feel they’ve had their day in court. I am quite sensitive to that. I think parties are paying huge sums of money to their lawyers and more recently they’re paying very substantial sums to the court. And I think they should feel they’ve had their money’s worth.85

English participants were, overall, less explicit in nominating the doctrines of procedural fairness as a limit on their managerial powers. They were more likely to refer to the need to secure a fair outcome.86 However, English judges referred to the significance of procedural fairness in other ways. As explained in chapter seven, English participants virtually took it for granted that their procedures would comply with the right to a fair trial in Art 6 of the European Convention on Human Rights. Concern for procedural fairness can be detected, too, in English judges’ deference to the wishes of the parties and their lawyers, notwithstanding an active approach to case management.87 One aspect of procedural fairness was at the forefront of many participants’ minds when running mega-litigation: the obligation to afford parties a hearing, even though this might add to the time or cost of the litigation. This comment was typical: You have to make sure that the case finishes within reasonable parameters but you also have to make sure the parties feel they’re getting a proper hearing.88

An English judge explained how this aspect of procedural fairness marked the boundary at which robust case management became impermissible: Ultimately you have to bear in mind that you have to do justice and you have to be seen to do justice. … Occasionally a judge can go too far and, for instance, refuse this or refuse that or say ‘I’m not going to let you argue something.’ … And then [the Court of Appeal has] to intervene. So ultimately the interests of justice are crucial.89

81 Michael

Black and Participant E3 interviews. A4 interview. 83 Peter McClellan, Participant A9 and Participant A15 interviews. 84 Participant A16 interview. 85 Participant E12 interview. 86 Participant E3 and Participant E9 interviews. 87 See the discussion of the extent to which judges will intervene in defining the issues, above at 126–7. 88 Participant A6 interview. 89 Participant E9 interview. 82 Participant

134  The Mega-Litigation Judge Participants also spoke of the difficulty of combining intensive case management with another hallmark of the judicial process: impartiality. David Harper of the Supreme Court of Victoria explained that, through intensive case management, the judge will build up knowledge about the evidence that is likely to be led at trial. As a result, the judge may very well have a sense of where the trial’s going to go. But while having that sense you’ve also got to tell yourself that you must not prejudge. … In the pre-trial process there is … the need and the danger of coming to tentative conclusions. And you have to remind yourself all the time that they are tentative only. It may be that they will be very helpful in the end, but they also pose the danger that you will do the parties injustice by making rulings in the interlocutory process that inhibit one or other of the parties from presenting the case as it would like to do.

An English judge observed that, while it was ideal for the same judge to preside over both the pre-trial and trial stages of a matter, a case managing judge would sometimes ‘do things which meant that you couldn’t try the case’.90 A vivid example of this danger was manifested in the Supreme Court of Queensland in 2018. For over a year, Bond J had been case managing a mega-litigation matter involving the liquidation of Queensland Nickel Pty Ltd. The matter was set down for a 60-day trial commencing in April 2019. In September 2018, Bond J had to recuse himself from the matter because he had, in an application for freezing orders, made findings adverse to the credit of a key witness.91 Although the Court was able to find another judge to hear the trial, much of the time Bond J had invested in becoming familiar with the case and crafting orders to best suit his approach to the trial was wasted. Neville Owen experienced a somewhat similar dilemma in Bell Group,92 this time during the trial. He explained that he found it useful to express tentative views about the merits of the parties’ cases on particular issues, in order to focus their attention on the most important issues. But he was constantly aware of creating the appearance of bias: There were a couple of issues … where I was, I think, a little too clear in what I thought of aspects of the case. That can be dangerous. But I learned from that, I tempered it after that. Sometimes I’d raise my eyebrows and say ‘oh, really?’ But I tried to be as circumspect as I could because the worst thing that could have happened was for a party to say ‘you’re biased’.

Procedural fairness, then, appears to be the line even the most active, interventionist mega-litigation judge will not cross. But procedural fairness is not a rigid standard. Procedural fairness ‘does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances’.93 The rules of procedural 90 Participant E1 interview. 91 Parbery v QNI Metals Pty Ltd [2018] QSC 213. 92 Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1, [2008] WASC 239. 93 National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 312 (Gibbs CJ); see also R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss

Characteristics of the Mega-Litigation Judge  135 fairness have never meant that the parties must be given an unlimited opportunity to present their case; on the contrary, the rules ‘in a particular case must always be moulded to the particular circumstances of that case’.94 In accordance with these principles, several interview participants acknowledged that procedural fairness has its limits: I don’t believe in an absolute right to call every witness and turn over every stone without some reasonable prospect of it being relevant to the determination of the real issues in the case. The real – and not the imagined or possible – issues.95 I always used to say ‘I will hear submissions from you for two hours. Not a penny more.’ … [The parties] say ‘I’m entitled to talk to you for as long as you like.’ And the answer is, you know, ‘you’re not. I’ve given you the opportunity to give me 1000 pages of writing. I’m not going to listen to you for three weeks.’96 There has to be a minimum level of procedure to ensure there’s a fair trial. That extends to pleadings, expert witness statements, discovery, but within limits. It’s reaching the balance between cost and a minimum requirement of fairness. … One thing we have learnt in the last ten years is you just can’t have open-ended justice, in other words that everything goes ahead without regard to the cost and the expense and the efficiency of the litigation. And so we have to limit the parties’ theoretical rights to call as many experts as they want for example, to discover every possible document that’s ever been published in the world about a particular topic, to thrash out issues that aren’t real issues at the trial.97 Procedural fairness being afforded doesn’t mean that you can’t manage large scale litigation, press the parties to define issues, limit the amount of evidence they can give and so forth. Because procedural fairness itself depends upon the circumstances, the context … Before we had the case management revolution [the position was] that every litigant is entitled to run his or her own case, to the lengths that that litigant considers appropriate in order to ensure that the litigant has every opportunity to put every argument of fact or law that may be available. But we can’t afford that, and so there have to be limits imposed. … Of course we recognise that procedural fairness is essential to the operation of the judicial system. But that doesn’t mean that a party has to have unlimited opportunities to pursue the case.98 It’s the opportunity to provide evidence and ask questions which is fundamental to our system. [But that is] absolutely not [unlimited]. It’s confined … under our current system by the fact that the State is paying the cost and providing the structure, which is a very significant cost and one the State will increasingly find burdensome.99

Group (1969) 122 CLR 546, 552–23 (Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ); Kioa v West (1985) 159 CLR 550, 585 (Mason J). 94 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 99 (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). 95 Michael Black interview. 96 Participant E3 interview. 97 Participant A4 interview. 98 Participant A16 interview. 99 Peter McClellan interview.

136  The Mega-Litigation Judge These quotes reflect the view that, as argued throughout this book, civil procedure serves multiple aims. The participants quoted above did not see their role as limited to doing justice between the parties. They were mindful of public efficiency (in taking into account the cost to the State) and public justice (in considering the effect of mega-litigation on other litigants). The latter two considerations could justify placing limits on the way parties to mega-litigation run their case. Some of these quotes also emphasise the importance of focusing on the real issues in the case. Participants saw focus on the issues as a way of limiting the scope of the hearing without compromising the parties’ ability to present their case on the heart of the dispute, and therefore without departing from the principles of procedural fairness. Once again, this position rests on the rejection of party control as a premise of civil procedure. Limiting the issues will generally involve excising portions of the parties’ case that do not bear upon the real issues. One participant referred to ‘the real – and not the imagined or possible – issues’.100 Yet the ‘imagined or possible’ issues are issues that the parties and their lawyers believed, at some stage, were worth litigating. In that sense, focusing on the real issues may mean giving the parties something less than the hearing they would have chosen for themselves. This is not necessarily a problem. As argued throughout this book, doing justice between the parties need not mean giving the parties whatever they may want.

II.  Personality and Experience The characteristics of a mega-litigation judge identified in this chapter – active, flexible, creative and fair – are not necessarily characteristics that all judges possess. The first three of these four attributes may run counter to the traditional role of the judge as a passive adjudicator. The legal profession, with its inherent conservatism, is not necessarily conducive to producing lateral thinking, risk-taking candidates for judicial office. The effect of this conservatism should not, however, be exaggerated; case management has been part of the litigation landscape for over two decades now, and some judges have come to the bench with the attributes of the mega-litigation judge described in this chapter. But it remains important to consider the extent to which the management of mega-litigation depends upon the personal characteristics of the individual judge. The interview data suggests that the way in which a judge manages megalitigation is heavily influenced by that person’s experience and personality. Former Chief Justice of the Federal Court, Michael Black, said of the management of mega-litigation: Some judges are very good at this. Others prefer, and are better suited to, other types of litigation. … Ideally, there should be the right match.

100 Michael

Black interview.

Personality and Experience  137 Two English judges said that, within the broad framework provided by the CPR, ‘there’s plenty of room for different judges doing things in slightly different ways’101 and ‘considerable scope for a judge to have preferences as to how things are done’.102 Part of being ‘the right match’ for mega-litigation is the judge’s inherent personality. Speaking of procedural innovation and active case management, Ray Finkelstein said: Some changes are personality driven. … I think that judges who managed cases ­extensively – before it became the thing to do – did so by force of their personality. I think it was the human temperament. In other words, some judges said ‘this is not working, and I am going to try better ways of doing it.’ … In whatever life they (the judge) would be in, they would try to bring about change. I think it’s very much personality driven.

Participant A6 identified two personality traits as factors that made him a good manager of large cases: ‘I’ve devoted a life to brevity. And … I’m tough – or so perceived to be.’ Other participants spoke of the need for ‘confidence’103 and ‘courage’104 when managing mega-litigation. Experience, as well as personality, affects the way judges manage megalitigation. Many interview participants who had worked on complex litigation as solicitors or counsel said this experience had been helpful when it came to managing mega-litigation as judges.105 Experience helped them to appreciate ‘the logistical problems that are involved from the side of the profession’,106 ‘the pressure that is on both sides’107 and ‘the difficulties about getting the case to court’.108 One Federal Court judge reflected on the way this understanding affected the management of mega-litigation as a judge: [I] know that the demands that I make on counsel and solicitors are real demands. When you ask for something to be prepared it doesn’t just happen, you know that it takes a lot.109

Some participants’ experience as lawyers helped them understand the motivations of the parties.110 One recalled attending board meetings of corporate clients involved in complex litigation: The only questions, delivered in a variety of ways, [were] ‘what are our risks? Who’s the judge? Is he or she any good? When does the trial start? How long’s it going to run? 101 Participant E11 interview. 102 Participant E10 interview. 103 Participant A16 interview. 104 Michael Black interview. 105 Sir Richard Aikens, Ray Finkelstein, Malcolm Lee, Wayne Martin and Robert McDougall interview; Participant A4, Participant A5, Participant A6, Participant A15, Participant A16, Participant E1, Participant E2, Participant E4 and Participant E5 interviews. 106 Participant A6 interview. 107 Participant E12 interview. 108 Participant A4 interview. 109 Participant A5 interview. 110 Participant A4, Participant A5 and Participant A6 interviews.

138  The Mega-Litigation Judge What are our prospects and, if we run it, how long’s judgment away?’ Why? Because they wanted to make a decision about whether to run [the case] or not run it, how much money is it going to cost to run it.111

As a result of this experience, the participant formed the view that it was important for the judge in mega-litigation to involve the clients at an early stage and, crucially, to make the issues in the case intelligible to the clients: We’ve actually got to get them involved early and get them to understand it. And that means exposing them to not just their own little world but the other side’s arguments as early as possible.112

Not only does this allow the clients to assess their risks and option; it can also help on a practical level. For example, this participant said clients who understood the issues at an early stage were likely to co-operate with reasonable requests for disclosure, because they understood which documents were likely to be relevant. Once again, this illustrates the importance of defining the issues as early as possible. Participants also said their experience as lawyers made them aware of the tactical games lawyers play in mega-litigation: Part of managing a case is understanding what they’re up to. What are the lawyers trying to do? Is there some point to all of this? Are they just trying to pressure the other side?113 Tactically, what counsel are trying to do, you can normally understand what they’re up to [because of experience as a lawyer].114 I remember this from when I was a barrister: the parties invest a lot of time in directing the argument at the character of the judge. So, you know, they actually manipulate the case for the judge. Parties are very, very much more manipulative than you give them credit for.115 You know the jockeying that goes on. … You understand the dynamics I think, better than if you had never been exposed to it.116 As counsel I experienced the pitfalls of mega-litigation, and as a judge managing those sort of cases I am cognisant of what people will do if you let them, and of ways of trying to head off the pitfalls into which cases of that kind can fall.117

Here we see that the task of the mega-litigation judge involves understanding and managing human behaviour – not just applying the law. Experience as lawyers gave participants insights into these matters that informed their management of mega-litigation as judges.



111 Participant

A5 interview. A16 interview. 113 Participant A16 interview. 114 Participant A4 interview. 115 Participant E3 interview. 116 Participant A5 interview. 117 Wayne Martin interview. 112 Participant

Personality and Experience  139 Several participants used their experience as lawyers as a source of inspiration for creative ways of dealing with mega-litigation.118 Malcolm Lee drew lessons from his experience in major corporate criminal trials, recalling some of the techniques that were used to make complex expert evidence more accessible, to ‘compress’ voluminous evidence, to encourage parties to agree on non-contested points, and to make innovative use of technology. Wayne Martin found, while in practice, that face-to-face discussions between lawyers were more productive and less combative than written communication. He applied this principle in megalitigation (and in case management generally) by insisting that some negotiations take place in person rather than in writing. Other participants’ experiences in mega-litigation had made them conscious of the dangers of litigation becoming too long and unwieldy,119 and the potential for procedures such as expert evidence and witness statements to be abused.120 Participants’ experience as lawyers gave them skills and abilities which made their task as mega-litigation judges easier. One reported, simply, that experience as a lawyer taught them the procedural ‘tricks of the trade’.121 A recurring theme was that experience as lawyers impressed upon participants both the importance of, and the techniques for, narrowing the issues: My understanding of the need for efficiency in a trial is heightened by my experience as a barrister. It very much taught me that some things are a waste of time. It taught me that it’s absolutely critical to identify the issues and structure the trial.122 What I particularly felt as a result of my experience [as an advocate in complex commercial cases] was that if you were to keep proper control of long trials, then you had to have identified the issues at the earliest possible stage, and kept those in focus, so that everything else that was done by way of preparation, whether it be in terms of disclosure or witness statements or experts was harnessed to the list of issues.123 After being a silk, you know that when given a 50-page document you think ‘actually, I’m not going to reply to 50 pages; I’m just going to reply to ten points’. You get good at focusing on the real points: ‘What’s this all about?’124

One participant said experience as counsel in mega-litigation had ‘assisted me to learn the ability to assimilate huge amounts of information in a quick period of time’.125 Ray Finkelstein explained that his extensive experience as a trial lawyer

118 Ray Finkelstein, Malcolm Lee, Wayne Martin, Participant A5, Participant A6 and Participant A15 interviews. 119 Participant E1 interview. 120 Sir Richard Aikens interview. 121 Participant A6 interview. 122 Participant E4 interview. 123 Sir Richard Aikens interview. 124 Participant E2 interview. 125 Participant A6 interview.

140  The Mega-Litigation Judge meant that he ‘knew how to run cases’126 and found it easier to make ex tempore procedural and evidentiary rulings: If there’s an objection to evidence I would rule on it on the spot. So those sort of things which come instinctively to trial lawyers translate quite well into practice as a trial judge. Looking at pleadings and working out whether or not they should be allowed. As a barrister you dealt with pleadings a thousand times. It may take you a few minutes to deal with pleading summonses as a judge. So pleading summonses did not take me any time to deal with. I never agonised over them. With arguments about discovery, I would just look at the document and say ‘discoverable or not discoverable’.

Finkelstein explained that experience as counsel had prepared him to take a very active role in trials as a judge: My experience as a trial barrister meant that if I was not happy with the way the ­questioning of witnesses went I would, at least up to a point, take it over. I would ask all the questions that I thought were relevant [if] I felt that the barristers were not getting out the issues that I wanted to know about.

Another participant said his experience as a barrister meant he ‘rarely give[s] the barristers time to argue a point without intervening’.127 Several participants said their reputation as lawyers affected the way advocates related to them as judges: People know that I know the area. I know the counsel involved. … They know, ultimately, that I am going to get my way.128 We had 200 counsel in the first hearing [in a mega-litigation matter]. … I know most of them very well, because [the subject matter of the litigation] was my field [as a lawyer], so that probably helped. They obviously understood very, very quickly what I wanted to do.129 The fact that you’ve done [complex litigation as a barrister] gives you a bit of credibility with the pompous end of the bar.130 I think it helps coming from the Bar where you obviously have a bit of a reputation. That the practitioners, solicitors and barristers who are now before me know that I’ve done big cases and know where I come from, and I think that helps.131

These remarks hint at a topic that will be explored further in the next chapter: the importance of interpersonal relationships in managing mega-litigation.



126 Participant

E4 expressed similar views. A4 interview. 128 Robert McDougall interview. 129 Participant E1 interview. 130 Participant E2 interview. 131 Participant E5 interview. 127 Participant

Conclusion  141

III. Conclusion This chapter has identified four characteristics of the mega-litigation judge that permeate virtually every aspect of their role. The mega-litigation judge is not the old-fashioned cuckoo clock judge. Mega-litigation judges are highly engaged participants in litigation from its earliest stages; they mould procedures to suit the needs of each case, and they make up rules as they go along. Involvement and imagination, rather than the passive application of rules, are the hallmarks of the mega-litigation judge. Not every judge has these qualities. To some extent, they are a function of personality; to a greater extent, they are the product of experience. As discussed earlier, many participants found that the experience they brought to the bench gave them tools for dealing with mega-litigation which they would not otherwise have possessed. The characteristics of the mega-litigation judge explored in this chapter reflect the pursuit of multiple aims: public justice and public efficiency as well as justice and efficiency for the parties. The mega-litigation judge is keenly aware of the effect of mega-litigation on the court system as a whole, and is willing to pursue efficiency through aggressive, innovative case management. On the other hand, interview participants displayed a strong concern for fairness – an aspect of justice between the parties as well as public justice. In the following chapter, the exploration of the task of the mega-litigation judge will be continued at a lower level of abstraction: by seeing how the characteristics identified in this chapter manifest themselves in procedural techniques in mega-litigation.

10 Procedural Techniques in Mega-Litigation The previous chapter explored judges’ general approach to mega-litigation. Four attributes that characterise this approach were identified: the mega-litigation judge is active, creative, flexible and fair. It followed that their response to the dilemma of how to reconcile the aims of justice and efficiency was likely to involve looking for new, better ways of handling mega-litigation efficiently while still affording the parties a fair hearing. The current chapter focuses on the ways in which these ideas are put into practice. This chapter examines some of the procedural techniques that Australian courts and judges use to deal with mega-litigation. Qualitative interview data is supplemented by information gathered from published decisions, speeches, articles, books and practice guides,1 and the procedural techniques used in megalitigation that emerged most strongly from these sources are outlined. This chapter is not a manual for procedure in mega-litigation.2 By inquiring into how mega-litigation judges go about their task, this chapter will add content to some concepts discussed in this book which have, until this point, been viewed at a higher level of abstraction. Chapter nine introduced the active, creative, ­flexible and fair approach of the mega-litigation judge. The current chapter shows how this approach translates into the day-to-day work of handling mega-litigation. While the aim of this chapter is to provide a positive rather than a normative view, the analysis does reveal strong support for some techniques. For instance, there was a strong view that management of a mega-litigation case by a single judge is crucial, and many interview participants had used similar techniques in controlling discovery and structuring trials. While the limits of the qualitative method 1 The method of combining empirical data with other sources is known as ‘triangulation’ and is commonly used in qualitative research: see Jane Lewis and Jane Ritchie, ‘Generalising from Qualitative Research’ in Jane Ritchie and Jane Lewis (eds), Qualitative Research Practice (Sage Publications, 2003) 263, 276–76; Michael Quinn Patton, Qualitative Research and Evaluation Methods (Sage Publications, 3rd edn, 2002) 247–48. 2 Publications along these lines already exist, although they are necessarily in the nature of guidelines rather than prescriptive rules: Judiciary of England and Wales, Report and Recommendations of the Commercial Court Long Trials Working Party (December 2007) (‘Long Trials Working Party Report’); Class Action and Electronic Trial Guide, Federal Court of Australia (2012) (Copy on file with author); Federal Judicial Center, Manual for Complex Litigation, Fourth (2004); Michael Legg, Case Management and Complex Civil Litigation (Federation Press, 2011).

Continuity of Case Management   143 employed here must be kept in mind,3 the analysis in this chapter does suggest that some practices are desirable, at least from the point of view of the court.

I.  Continuity of Case Management As explained in chapter nine, mega-litigation judges see active case management as one of the keys to dealing with such litigation. For many interview participants, there was a major advantage in having a case managed by one judge from an early stage.4 Some jurisdictions have formalised this arrangement; most notably, the Federal Court runs on a docket system, under which each matter is allocated to a judge upon filing, and managed by that judge to its conclusion.5 Most other jurisdictions have some formal or informal process for cases to be allocated to a single case managing judge. There are several benefits in a single judge managing a mega-litigation case throughout the life of the matter. Some participants referred to the benefits of ‘continuity’6 and ‘consistency and predictability’.7 The judge becomes f­amiliar with the facts, issues, documents and personnel in the case. This saves court time, as the judge does not have to review a gigantic file for the first time at every hearing; the judge simply needs to keep ‘up to speed’ with new developments.8 In addition, a judge who is familiar with a matter is able to play a more ‘constructive role’9 in guiding the direction of the matter. Writing extrajudicially, Justice Steven Rares of the Federal Court explains that the docket system enables the judge to become familiar with the issues, to help the parties refine them, to ensure that the case is properly managed so that it will be presented at trial in the way that it is most likely to achieve an efficient presentation of the real issues in dispute and their speedy determination.10

One participant saw continuity of case management as a matter of value for the parties: The average cost of an appearance at a directions hearing … is … per party … between $20,000 and $30,000. That is huge. … From my perspective that means each party has 3 These limits are discussed in Appendix A. 4 Ray Finkelstein, Malcolm Lee, Wayne Martin, Participant A4, Participant A5, Participant A15, Participant A16, Participant E1, Participant E2, Participant E4, Participant 35, Participant E7, Participant E9, Participant E10 and Participant E11 interviews. 5 Federal Court of Australia, CPN-1, Central Practice Note: National Court Framework and Case Management 25 October 2016, [4]. 6 Participant A16, Participant E5 and Participant E9 interviews. 7 Participant E11 interview. 8 Participant A4 interview. Similar points made by other participants: Malcolm Lee, Wayne Martin, Participant E1, Participant E4 and Participant E9 interviews. 9 Malcolm Lee interview. 10 Justice Steven Rares, ‘What is a Quality Judiciary?’ (2011) 20 Journal of Judicial Administration 133, 142.

144  Procedural Techniques in Mega-Litigation invested $20,000 or $30,000 in me. In the Court. That is, imparting to the Court some knowledge that they think is important. Either because they want a dispute resolved in order to progress the litigation or … sometimes it’s just to educate me. Sometimes it’s just, you know, ‘we need to get together and work out where we’re at, what’s h ­ appening, and get everyone in the room at one time.’ I think it has to be one person from the beginning all the way through. Because otherwise the investment’s lost.11

A further advantage of a single case managing judge is that it puts the judge in a position to foster a ‘spirit of cooperation’.12 The parties can become familiar with the judge’s approach to procedural issues: The good thing about having a single case managing judge is that people can see which way the wind blows. Parties can be tempted to make, and argue, all sorts of procedural applications. But once they start to see what the judge is going to say they can see which way the application will be decided.13

The effect of continuous case management on the behaviour of the parties and their lawyers can be especially powerful when there is an expectation, or at least a possibility, that the case managing judge will hear the trial: The big advantage I think of the case manager who is also the trial judge is that it keeps the parties honest. Because they don’t want to antagonise you and they don’t want you to form an impression that they’re playing strategic games because they know that will influence your attitude towards their case at trial. So I think being the trial judge is a big advantage as case manager. It’s a disadvantage if you’re not.14 You’re the one that’s going to hear it and you know it and they know it. And that’s why … waffling with false issues doesn’t work with a docket judge, because the parties know they’ll get the judge offside if they put up things that are a waste of time.15 The litigants … think that if they take all sorts of ridiculous points in the case ­management stage they’ll antagonise the judge who is going to hear the case.16 The parties don’t [mess] the judge about quite so much. They know this judge will be hearing it at the end of the day. It’s very conducive to proper behaviour on the part of counsel; they are much more cooperative.17

This participant explained how the prospect of hearing the trial could sharpen case management decisions: You’re making decisions which will bind the trial judge. In a big case, once you’ve set the tone, taken responsibility for it, then you have to live with what you’ve done. But I’m sure there’s a huge advantage, as a trial judge, if you’ve been case managing judge. At a basic level, you already know the case very well. Also you have to live with what you’ve done. Living with your own decisions.18

11 Participant

A5 interview. E4 interview. 13 Participant E2 interview. 14 Wayne Martin interview. 15 Participant A15 interview. 16 Participant E10 interview. 17 Participant E4 interview. 18 Participant E2 interview. 12 Participant

Defining the Issues  145 While there was near-unanimous agreement that mega-litigation required continuous management by the same judge, not everybody thought this was best achieved by a docket system. One participant expressed concern that a randomallocation docket system could undermine the uniformity of case management across the court, with the quality of the management of each case depending on the judge to whom it is allocated.19 Several participants explained that a docket system could be problematic in a court with a heavy and varied caseload; flexibility was needed.20 For example, if an urgent interlocutory question arose while the judge managing the case was away on circuit hearing criminal matters, another judge should be able to determine the interlocutory question. Likewise, if a judge was free at the time when a case was ready to go to trial, that judge might hear the trial even though that judge had not been the case managing judge. In short, while it is ‘close to essential’21 to have a single judge manage megalitigation continuously, and ideally to be the trial judge as well, this is ‘not a dogma. It’s practical.’22

II.  Defining the Issues It should already be apparent that interview participants saw defining the issues at an early stage as crucial to managing mega-litigation; and that they thought this ought not be left purely to the parties. The traditional procedural mechanism for defining the issues is, of course, pleadings. There are some well-known criticisms of pleadings, including that they are often overly technical and detailed, and that they encourage adversarial disputes.23 Interview participants had experienced these problems: Issues are important and pleadings are not, at this level. … Nobody ever looks at pleadings. They’re expensive and time-consuming.24 They can … become a vicious distraction. If people are going to spend hours, days, weeks, arguing about the adequacy of the pleading it’s just pointless.25 The pleadings [in a mega-litigation matter] were, I think, 1000 pages all up. … So yes, the pleadings weren’t particularly helpful at all.26

19 Similar concerns have been expressed elsewhere: Australian Law Reform Commission, Review of the Federal Civil Justice System, Discussion Paper No 62 (1999) 295 [10.61]. 20 Participant A6, Participant E3, Participant E5 and Participant E9 interviews. 21 Participant A4 interview. 22 Participant E3 interview. 23 See, eg, Law Council of Australia and Federal Court of Australia, Case Management Handbook (2nd edn, 2014) 29 [5.59]. 24 Participant E3 interview. 25 Participant A11 interview. 26 Participant A14 interview.

146  Procedural Techniques in Mega-Litigation There’s no doubt that, in my time at the bar, pleadings got longer and more complicated. And to my mind, there was often a danger that the pleadings would lose … the points of the case in the detail.27

Despite these difficulties, several participants said that pleadings were essential, or at least useful, in mega-litigation:28 ‘[I]f you don’t have a means of accurately confining the issues then you can get yourself in terrible trouble at trial.’29 Some Australian participants had devised ways of supplementing the ­pleadings with more concise issue-definition documents. One participant reported a routine practice of requiring parties to produce, at an early stage, an agreed list of issues.30 This was used to manage the case through the pre-trial stages, and as a basis for closing submissions at the trial. This practice, which apparently originated with this judge, has found its way into the practice directions for the relevant division of the court. In Bell Group,31 Neville Owen used a ‘judgment structure’ to define the issues throughout the trial and, eventually, to form the basis for closing submissions: From a very early stage I’d given the parties a document that had the headings that I was going to use for the judgment. And that was a work in progress. Each time a new draft would come out from me they had the opportunity to comment, and they did. But that also, I think, helped them to crystallise their thinking on issues.32

Although in Australia this sort of issue definition technique has been the initiative of individual judges, in England similar techniques have been implemented at a more systemic level. Lists of issues have been used for many years in the Commercial Court. The Long Trials Working Party identified that, by 2007, lists of issues were ‘often not much use to the judge’.33 They were ‘often either too short and general or too long and then often fail to distinguish between key issues and subissues’. The Working Party recommended a new style List of Issues, to be settled at the first Case Management Conference with the active involvement of the judge. This document would be ‘the key working document in all Commercial Court cases’: the basis for decisions about disclosure, witness statements, experts, ‘and, ultimately, the shape of any trial’.34 The List of Common Ground and Issues, as it is now known, is required in all Commercial Court cases.35 It is ‘a case management tool’, but does not supersede the pleadings.36 An English participant who was not a member of the Commercial



27 Sir

Richard Aikens interview. A6, Participant A11 and Participant A13 interviews. 29 Participant A11 interview. 30 Participant A13 interview. 31 Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1, [2008] WASC 239. 32 Neville Owen interview. 33 Long Trials Working Party Report (n 2) 23 [51]. 34 Ibid 23 [51]. 35 HM Courts and Tribunals Service, The Commercial Court Guide (10th edn, 2017) 27–28 [D.6]. 36 Ibid 28 [D.6]. 28 Participant

Discovery  147 Court reported that something similar was used in other parts of the English court system: You can’t try a case without knowing what the issues are. I mean, whoever you are, if you are a judge and you try and try a case without knowing what the issues are, you are going to get it wrong. So whether you call it a list of issues or not, every case [in this division] will have a list of issues as well as in the Commercial Court.37

In Australia, courts are able, as part of their general case management powers, to supplement pleadings with lists of issues.38 This practice does not seem as widespread in Australia as in England, although there is certainly evidence of its use in mega-litigation.

III. Discovery Discovery (known in some jurisdictions as disclosure) is often cited as one of the largest sources of cost in litigation.39 The problems of discovery are magnified in mega-litigation because of the breadth of the factual issues involved, the resources that the parties are prepared to expend, and the ‘battlefield mentality’40 with which mega-litigation is often conducted. Evidence given to the Jackson inquiry by a commercial law firm identified disclosure as ‘by far the largest costs driver’ in complex litigation.41 Many jurisdictions have changed their procedural rules to contain d ­ iscovery. The Civil Procedure Rules (CPR) replaced the potentially endless ‘train of inquiry’ test42 with a narrower test requiring standard disclosure (which centred on ­documents on which the parties relied or which affected a party’s case) unless the court ordered otherwise.43 The CPR were amended significantly as a result of the ­Jackson Report, with standard disclosure being replaced, in relatively complex cases,44 by ‘menu option’ disclosure.45 This gives the court broad discretion to tailor the scope of the discovery exercise, choosing from 37 Participant E3 interview. 38 See, eg, Supreme Court of New South Wales, Practice Note No SC Eq 3: Supreme Court Equity Division – Commercial List and Technology and Construction List (10 December 2008), [25.3]; Federal Court Rules 2011 (Cth) r 5.04(3) Item 29(b); Law Council of Australia and Federal Court of Australia, Case Management Handbook (2nd edn, 2014) 29–30. 39 See, eg, The Right Honourable Lord Justice Jackson, Reform of Civil Litigation Costs: Final Report (December 2009) (‘the Jackson Report’) 369 [3.5]; Australian Law Reform Commission, Managing Discovery: Discovery of Documents in Federal Courts, Report No 115 (2011). 40 Robert McDougall interview. See further in chapter three at 30–33. 41 Jackson Report (n 39) 275. 42 From Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55. 43 CPR r 31.5 (in force from 26 April 1999 to 1 April 2013). 44 All cases in the multi-track, except personal injury claims: CPR r 31.5(2). 45 For an account of the reforms in discovery from pre-Woolf to post-Jackson days, see Stuart Sime and Derek French, Blackstone’s Guide to the Civil Justice Reforms 2013 (Oxford University Press, 2013) ch 8.

148  Procedural Techniques in Mega-Litigation a ‘menu’ that includes standard d ­ isclosure;46 disclosure ‘on an issue by issue 47 basis’; disclosure of documents that may reasonably be supposed to contain relevant information;48 dispensing with disclosure altogether;49 giving effect to a disclosure regime agreed upon by the parties;50 or any other order that the court considers appropriate.51 Australian jurisdictions, too, have modified their rules to reduce the burden of discovery, moving towards tighter judicial control. The position in the Federal Court has, since 2011, been that discovery is allowed only after an order of the court,52 usually limited to a narrowly defined category of documents, and with a strong emphasis on keeping costs to a minimum.53 Other jurisdictions have taken even stricter approaches; for example, in 2012, the Equity Division of the Supreme Court of New South Wales introduced a Practice Note stipulating that there would be no order for discovery until the parties had served their evidence.54 There remains a spectrum of approaches to discovery in Australia; in some jurisdictions, discovery is still available as of right in many circumstances.55 The Australian judges interviewed for this project had devised innovative ways of managing discovery in mega-litigation, often anticipating subsequent changes to the rules. One participant spoke of ordering the parties to exchange ‘critical documents’ and then determining whether further discovery was necessary.56 Ray Finkelstein, while not a proponent of setting formal categories of discoverable documents, ‘would work out with the parties’ the categories of documents that were likely to be most useful. Based on the issues in the case and relying on his experience as a commercial lawyer, as well as the input of the parties, ­Finkelstein would determine where the most important documents were likely to be found: I would look at the issues and say ‘look, the first thing you can do is get a particular category of all the Board papers and nothing else. When you have looked at those and you need more come back in a few weeks’ time’.

If the parties reported that the first category of documents did not furnish them with sufficient information, Finkelstein would redirect the search, again 46 CPR r 31.5(7)(e). 47 CPR r 31.5(7)(c). 48 CPR r 31.5(7)(3). 49 CPR r 31.5(7)(a). 50 CPR r 31.5(6). 51 CPR r 31.5(7)(f). 52 Federal Court Rules 2011 (Cth) ch 2 pt 20. 53 See Federal Court of Australia, CPN-1 Central Practice Note: National Court Framework and Case Management, 25 October 2016, [10]. 54 Supreme Court of New South Wales, Practice Note SC Eq 11 – Disclosure in the Equity Division, 22 March 2012. 55 See, eg, Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 29; Rules of the Supreme Court 1971 (WA) O26. 56 Participant A15 interview.

Discovery  149 focusing on the area which was most likely to yield documents bearing on the crucial issues: I would ask the parties for example, ‘did the Board have a subcommittee or was a specific officer designated to deal with this issue in dispute?’ And if the answer was “yes” I would then know where to look.’ So, those documents would be produced … And then the parties could come back and have another go and see what they need next.

Wayne Martin spoke about the challenges of discovery in an age when technology makes it possible to retrieve electronic documents ‘indiscriminately’: There is a real danger of … discovery by avalanche of material, which then means that if there is a smoking gun … you can hide it in three million documents that you discover.

Martin said he would not contemplate an order for general discovery in megalitigation. Instead, for example, in a recent mega-litigation matter he had convened a series of round-table discovery conferences. The parties were able to bring to the conference their consultants responsible for managing their electronic document databases. At these conferences, the parties and the judge reached agreement on ‘the basic parameters of the process’. Discovery of electronic documents was based on agreed search terms entered into the databases. Martin waited to see what this process produced before, if necessary, ordering further discovery based on additional search terms. These techniques are strikingly similar to the bespoke, judicially controlled approach to discovery set out in the CPR. Similar, too, is this description of discovery in the Commercial Court from an English participant: We at the Commercial Court were at the forefront of that refinement [of disclosure rules] and we’re now, also, trying to get on top of the disclosure costs that are inevitably very large. But one of the ways that that is achieved is by asking the question: what is the disclosure that is really required here? If it’s just the construction of the contract, why do we need disclosure of any substance? If on the other hand it’s a fraud case, well, fair enough.57

There are some common threads in these approaches. They require substantial input from the judge, based on an understanding of the critical issues in the case. They involve detailed attention to the circumstances of each case, rather than the application of general rules. As such, these techniques are illustrations of the active, flexible, creative approach introduced in the previous chapter. They also tell us something about the respective roles of the parties and the judge. It is not up to the parties to decide what documents they wish to include; it is the responsibility of the judge to work out, in collaboration with the parties, what documents are needed in order to do justice in the case. This need not involve the judge dictating what the parties do; the processes that participants described were collaborative rather than dictatorial.

57 Participant

E5 interview.

150  Procedural Techniques in Mega-Litigation

IV.  Separate Issues A huge case can be easier to manage if broken down into smaller parts. The determination of a discrete issue may be determinative of the whole action, or may help the parties reach settlement. To take an obvious example, a determination on liability may negate the need to consider quantum. The CPR allow the court to make an order for the trial of separate issues,58 as do the rules in all ­Australian jurisdictions.59 Interview participants spoke of the potential for the trial of separate issues to bring mega-litigation to a relatively swift conclusion.60 Robert Mc­Dougall explained how the process could both lighten the burden on the judge, and ­facilitate settlement: [Mega-litigation] can get to a stage where … it’s just too much to take in. So if you can find a way of staging the hearing, you lessen the burden. And you also make it easier for the parties then to see what their real prospects are – they’ve had a judicial ­determination on [an issue]. They might or might not agree. … But the losing party knows that at least one independent mind has a different view.61

Malcolm Lee explained that the value of this process did not lie only in the possibility that a single issue could be dispositive of the entire matter: It [can] help counsel to chart how to prepare thereafter, even if they intend to challenge that finding later, it might be that they would, having had it go against them on a preliminary issue, [prepare differently]. … It might have quite a bearing on how they prepare the case, and present it. … In big trials there’s always going to be something that may be sitting in there, there will always be a kernel that would be worthwhile dealing with because of the ramifications that it can have for other things. Not because it determines the matter … but because it has the ability to change the complexion of the litigation.62

While more Australian than English participants spoke about this, trial of separate issues is a well-accepted technique in the Commercial Court,63 and greater use of this technique was identified by the Long Trials Working Party as a potentially fruitful way of encouraging settlement.64 Appeal courts in England and Australia have warned that trying separate issues can be a ‘treacherous shortcut’65 with benefits ‘more chimerical than real’.66 Some interview participants acknowledged the pitfalls of the technique. Separate 58 CPR r 3.1(2)(i). 59 See, eg, Federal Court Rules 2011 (Cth) Div 30.1; Uniform Civil Procedure Rules 2005 (NSW) pt 28; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 47.04. 60 Participant A4, Participant A5, Participant A6, Participant A10, Participant A13, Participant A16 and Participant E6 interviews. 61 Robert McDougall interview. 62 Malcolm Lee interview. 63 The Commercial Court Guide (n 35) 70 [J.2]. 64 Long Trials Working Party Report (n 2) 38. 65 Tilling v Whiteman [1980] AC 1, 25 (Lord Scarman). 66 Tepko Pty Ltd v Water Board (2001) 206 CLR 1, 55 [168] (Kirby and Callinan JJ).

Sharing the Judicial Task  151 questions sometimes ‘take on a life of their own’,67 creating satellite litigation. In complex litigation, the issues may be so intertwined that it is impossible to isolate a truly discrete issue.68 It may be difficult to nail down the factual basis on which the court is being asked to rule on the separate issue.69 In hard-fought, factually dense mega-litigation, it may be difficult to reach agreement about the facts that will form the basis of the separate determination.70 Having to engage in an ­extensive process of finding contested facts may negate the benefits of the separate issue procedure. Most of these difficulties can be overcome by very careful attention, before embarking on the determination of a separate issue, to the appropriateness of an issue for separate determination, the form of the question to be determined ­separately, and the factual basis on which it is to be determined.71 All of this requires a high level of judicial engagement. It also calls for co-operation from the parties. Robert McDougall described the circumstances in which he had decided to determine a preliminary question in a mega-litigation matter:72 I was encouraged … in this particular case to take an innovative approach to separation of questions, and to try and break loose of the traditional shackles. … The parties were not unwilling to do that. It wasn’t a question of my forcing a regime on them, so the prospects of appellate interference are not all that high.

Several interview participants reported trying separate issues successfully,73 and two identified this technique as a key area of development in the management of mega-litigation.74 The trial of separate issues, then, is one way of making mega-litigation more efficient while still determining the key issues between the parties. But a high level of commitment and attention is needed from both the parties and the judge. This calls for many of the skills and attributes of the mega-litigation judge identified in the previous chapter: an active approach to case management, creativity, flexibility and an understanding of complex litigation.

V.  Sharing the Judicial Task There are other ways in which judges can break a mega-litigation matter into smaller sections. One possibility is to pass tasks on to other people. Some ­procedural 67 Participant A6 interview. Participant A16 expressed similar concerns. 68 See, eg, Idoport Pty Ltd v National Bank Ltd [2000] NSWSC 1215. 69 See McLoughlin v Grovers [2002] EWCA Civ 1743, 2 WLR 1279, [62]–[66] (David Steel J). In Australian Federal courts, it is a constitutional requirement that determinations of separate issues be based on established or agreed facts: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334. 70 Particularly since, as one participant pointed out, determination of a separate issue is of little use unless the parties are prepared to agree the underlying facts for all purposes in the trial: Participant A6. 71 See McLoughlin v Grovers [2002] EWCACiv 1743; 2 WLR 1279, [66] (David Steel J). 72 The hearing of the preliminary question alone was expected to take 4–8 months. 73 Robert McDougall, Participant A4, Participant A5 and Participant A8 interviews. 74 Malcolm Lee and Robert McDougall interviews.

152  Procedural Techniques in Mega-Litigation applications can be heard by an officer of the court such as a Master, Associate Judge or Registrar, thus reducing the workload on the case managing judge. This need not undermine the continuous management of a case by a single judge; officers of the court are generally used to deal with routine procedural applications, with the case managing judge retaining responsibility for the overall progress of the matter. The Honourable Neville Owen has, on several occasions, paid tribute to the contribution made by a Registrar assigned to assist with managing the logistics of the Bell Group litigation.75 He explained that the Registrar would frequently meet with the parties’ legal representatives ‘to iron out disputes’.76 This, he said, reduced significantly the amount of court time devoted to procedural and programming disputes that should have been routine and uncontentious but which I am aware generated some heat between the parties. The Registrar operated effectively as a mediator. The mediations involved bringing the parties together to assist them to resolve the issues. The Registrar guided the parties in negotiating protocols and agreeing time periods in which steps were to be taken, bearing in mind general directions that I had given. This often involved negotiating extensions and truncations and the logistics of compliance. The objective of the mediations was to break down the ancillary disputes into small parts and resolve them without ever having to take them to the Judge for argument. At the end of the negotiations the Registrar was often able to make directions by consent and with the delegated authority of the Judge.77

Several interview participants said that they had used officers of the court ­effectively in mega-litigation.78 An English participant reported working in collaboration with another judge on a large group action: It was a group action of … five groups. So it’s a group of group actions, and he dealt with the grouping, getting the group orders out, and then odd issues. So he probably had two or three hearings on his own, and sat with me on the big hearing. … I dealt with the strategic stuff and he dealt with the sort of more tactical stuff if that makes sense. … We worked together on [costs management]. But on an issue which perhaps only affected one case or a small category of cases, he would deal with that.79

Quite apart from these practical benefits, it may be prudent for another judicial officer to determine a procedural dispute in mega-litigation to preserve the r­ eality, and appearance, of the case managing judge’s impartiality. This is particularly 75 Justice Neville Owen, ‘Surpassing Sisyphus – Idle Musings on Surviving Long Trials’ (Paper presented at Supreme Court of Victoria Judges’ Conference, Mornington Peninsula, 5 November 2009); Owen J, ‘Farewell to the Honourable Justice Neville Owen’ (Retirement speech delivered at special sitting of the Supreme Court of Western Australia, 2 July 2010). 76 Owen, ‘Surpassing Sisyphus’ (n 75). 77 Ibid. 78 Neville Owen, Participant A4 and Participant E1 interviews. 79 Participant E1 interview.

Sharing the Judicial Task  153 important when the case managing judge is also the trial judge. The judge’s ability to hear the trial might be compromised by, for example, inspecting documents over which privilege is claimed.80 The use of referees and assessors offer further ways of sharing the work of mega-litigation. The CPR allow the High Court to appoint an assessor to ‘assist the court in dealing with a matter in which the assessor has skill and experience’.81 The assessor’s role may include preparing a report on a matter at issue in the proceedings, and/or attending the trial to advise the court on the matter.82 All Australian jurisdictions provide for the court to appoint either a referee (to whom a question of fact or law may be referred for report)83 or an assessor (who sits with, and advises, the judge on technical issues)84 or both.85 When questions are referred to a referee or assessor for report, this can reduce the task of the judge in mega-litigation without adding to the cost for the court system. The referee or assessor can deal with complex technical questions involving specialised knowledge.86 The referee can be somebody outside the court, and need not have any legal qualifications. In some jurisdictions, referees are able to conduct a hearing in the way they see fit, and are not bound by the rules of evidence.87 They can ‘bring personal knowledge and experience to bear’.88 ­Importantly, the parties – rather than the court system – are generally responsible for the remuneration of the referee, and associated costs.89 Three interview participants spoke favourably of the use of the reference process in mega-litigation.90 Robert McDougall had referred a question of building defects to a referee, expecting that, although the referee might take many months to complete the task, this would be much more efficient than having a judge decide the issues: Classic question for referee: not bound by the rules of evidence, can invent their own procedures, can sit in the room with experts and reach a view et cetera et cetera et cetera. Much more efficient than having a judge do it.

80 See, eg, Australian Securities and Investments Commission v Rich [2004] NSWSC 1017 (claim of privilege heard by a different judge so that the case managing judge would be able to hear the trial). Another example emerges from the Centro proceedings in the Federal Court: when the case settled mid-trial, a judge other than the trial judge determined the settlement approval, because of the ­possibility that settlement would fail and the trial would have to proceed: Kirby v Centro Properties Ltd (No 6) [2012] FCA 650. 81 CPR r 35.15(2). 82 CPR r 35.15(3). 83 See, eg, Federal Court of Australia Act 1976 (Cth) s 54A. 84 See, eg, Court Procedures Rules 2006 (ACT) r 1530. 85 See, eg, Rules of the Supreme Court 1971 (WA) O 35. 86 See Park Rail Developments Pty Ltd v R J Pearce Associates Pty Ltd (1987) 8 NSWLR 123, 126. 87 See Baulderstone Pty Ltd v QIC Pty Ltd [2012] NSWSC 235, [27]–[29]; Federal Court Rules 2011 (Cth) r 28.65. 88 Super Pty Ltd v SJP Formwork (Aus) Pty Ltd (1992) 29 NSWLR 549, 557 (Gleeson CJ). 89 See, eg, CPR r 35.15(5); Uniform Civil Procedure Rules 2005 (NSW) r 20.18. 90 Peter McClellan, Robert McDougall and Participant A6 interviews.

154  Procedural Techniques in Mega-Litigation Taking evidence on commission offers another, less drastic, method of reducing the judge’s task in mega-litigation. This process, which has its roots in eighteenth century Chancery practice,91 traditionally involved a court-appointed examiner taking the evidence of a witness outside the jurisdiction. This procedure has been captured in the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters,92 to which both the UK and Australia are parties. Evidence on commission can be a useful tool in mega-litigation, which often involves an international element. This is particularly the case in Australia, where key witnesses are sometimes located on the other side of the world. The process of taking evidence on commission was later expanded to allow an examiner to take evidence of a witness who was within the jurisdiction but unable to attend the hearing.93 In mega-litigation the process has been taken further. In the ultimately abortive Idoport proceedings in the Supreme Court of New South Wales,94 Einstein J took the ‘very unusual step’ of ordering that the cross-­examination of some of the expert witnesses be taken by an examiner.95 In taking this step, Einstein J was motivated by efficiency concerns: There is simply such a huge saving of time capable of being achieved by the proposal for cross-examination even of some … witnesses before an examiner, that to my mind the adoption of this course represents a practicable and efficient case management ­procedure for the taking of a particular category of evidence. The proposal serves the dual purposes of ensuring that the trial judge be freed to hear other cases and to carry out chamber work in relation to the ongoing proceedings, as and when practicable during what, save for an examiner presiding over the taking of certain cross-­ examination evidence, would arguably have taken up … a considerable section of the trial judge’s time sitting in court.96

This unusual step is yet another example of a mega-litigation judge adapting ­existing procedures in flexible and innovative ways, in order to create efficiencies for the justice system. Sharing the judicial task can be taken further, by having a mega-litigation matter (including the trial) heard by a panel of two or more judges. This procedure is familiar to England’s Commercial Court, which for many years had employed two-judge teams for some complex cases.97 The Long Trials Working Party found that this procedure had been under-used and recommended greater use of 91 See Gummow J’s discussion of the history of the process in Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (1987) 14 FCR 461, 466, referring to Moodalay v Morton (1785) 1 Br C C 469, 28 ER 1245; Lord Belmore v Anderson (1792) 2 Cox 288, 30 ER 134; Thorpe v Macauley (1820) 5 Madd 218, 56 ER 877; Devis v Turnbull (1822) 6 Madd 232, 56 ER 1080. 92 Opened for signature 18 March 1970, 847 UNTS 231 (entered into force 7 October 1972). 93 See Warner v Mosses (1880) 16 Ch D 100; Bidder v Bridges (1884) 26 Ch D 1. 94 The proceedings were dismissed, after more than 200 days of trial, when the plaintiff failed to provide security for costs: Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWSC 18. 95 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 838, [12]. 96 Ibid [101]. 97 See Sir Anthony Colman, Victor Lyon and Philippa Hopkins, The Practice and Procedure of the Commercial Court (Informa, 6th edn, 2008) 75–76.

Sharing the Judicial Task  155 two-judge teams for heavy and complex cases.98 But since then this arrangement has actually become less common, with reference to the two-judge team being removed from The Commercial Court Guide in 2009. One English interview participant had, however, employed a variation on this technique. Because the litigation involved claims in two different jurisdictions of the High Court, with overlapping facts and issues, the trial was heard by two judges, one from each jurisdiction.99 It is not common practice in Australian courts for a team of judges to hear a trial,100 and no Australian interview participants had experienced this. However, several Australian judges have suggested a team of judges would be useful in mega-litigation.101 Neville Owen told me: If you’ve got a problem and you’re nutting it out by yourself it might take you a day to come up with the answer. If you’ve got to talk about it to someone else, the mere … discipline of having to put your thoughts in order so that you can tell someone about them and get their feedback, [will mean that] what would otherwise have been a day will only be half an hour. But the other thing is that these sorts of cases lend themselves to be split up. … In Bell Group, I saw how you could have split it up. Judge A deals with that, Judge B deals with this, Judge C deals with this, you video it so that if an issue comes up the other judges … can have a look at the video. You then of course take joint responsibility for the judgment.

In the C7 judgment, Sackville J championed the idea of employing either a panel of judges, or a ‘reserve judge’ in mega-litigation.102 The benefits would be similar to those identified by Neville Owen: there would be ‘a division of labour and an opportunity for discussion between peers on the complex issues thrown up by mega-litigation’.103 In addition, Sackville J pointed out that it would alleviate the risk that, were one judge unable to complete the trial, the trial would have to start afresh before a new judge.104 Several interview participants thought a panel of judges had the potential to make mega-litigation progress more quickly, and to lessen the burden on any one judge.105 This would not be appropriate in every case; in ASIC v Rich, Austin J dismissed any suggestion that it would have been helpful to have more than one judge involved in the hearing, because ‘the factual … issues were integrated and needed to be mastered by a single mind’.106 One interview participant ­foresaw

98 Long Trials Working Party Report (n 2) 60 [167]–[170]. 99 Participant E4 interview. 100 Although, arguably, this would be permitted by the governing legislation and rules of most ­Australian courts: see, eg, Federal Court of Australia Act 1976 (Cth) ss 14, 20(1A). 101 Rares (n 10) 143; Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1, 903 [9736] (Owen J). 102 Seven Network Ltd v News Ltd [2007] FCA 1062, [66]. 103 Ibid. 104 Ibid [63]–[66]. 105 Wayne Martin, Peter McClellan, Robert McDougall, Neville Owen, Participant A9 and Participant A16 interviews. 106 Australian Securities and Investments Commission v Rich (2009) 236 FLR 1, 31 [60].

156  Procedural Techniques in Mega-Litigation ‘logistical and administrative issues’ but nonetheless thought that ‘a panel of judges is an initiative worth seriously considering in future’.107 The biggest obstacle to any proposal to have mega-litigation heard by multiple judges, however, is resources. Most of those participants who saw benefits in the panel-of-judges proposal acknowledged that allocating more than one judge to be devoted to a single matter might increase, rather than alleviate, the strain on court resources.108

VI.  Structuring the Trial Traditionally, an adversarial trial follows a conventional pattern: the plaintiff ’s case, then the defendant’s case, then closing submissions. Decisions about the order in which witnesses are called, the amount of time spent on each part of the trial, and the structure and emphasis of the closing submissions are made by the parties and their legal representatives, rather than by the court. In keeping with contemporary case management principles, the structure of trials has become more flexible, with some control over the structure of the trial shifting from the parties to the court. In England, the CPR require the court to set a trial timetable for most cases in the multi-track.109 The timetable will ­allocate time to the various stages of the trial, including openings, oral evidence and closing submissions. For some English interview participants, the trial timetable was critical to managing mega-litigation efficiently without compromising justice between the parties. One participant had run a 600-party trial in 30 sitting days: It was perfectly possible because every aspect of the case was regulated in advance. People knew precisely how long they were going to be allowed to cross-examine for, how much material they were going to be allowed to produce, when they were going to be allowed to speak and not speak, and it was an entirely collaborative process. And the result was understood and accepted on all sides.110

In Australia, at the time of conducting interviews, trial timetables were not a standard requirement.111 However, in keeping with their active, flexible, creative

107 Participant A4 interview. 108 Peter McClellan, Robert McDougall and Participant A9 interviews. 109 CPR r 29.8. r For detail of how this operates in the Commercial Court, see Practice Direction 58 – Commercial Court, cl 11.3–11.5; The Commercial Court Guide (n 35) [J5.5]. Track allocation was one of the innovations of the Woolf reforms. Each matter is, at an early stage, allocated to one of three case management tracks based on its value and complexity: the small track, fast track or multi-track: CPR r 26. 110 Participant E3 interview. 111 Although this is becoming common in some Australian jurisdictions: see, eg, Federal Court of Australia, Central Practice Note: National Court Management Framework and Case Management (CPN-1) (25 October 2016) 13.3(d). The Commercial List in the Supreme Court of New South Wales has for some time made provision for timetabled ‘Stopwatch Hearings’: Supreme Court of New South Wales, Practice Note No SC Eq 3, Supreme Court Equity Division – Commercial List and Technology and Construction List, 10 December 2008, [50].

Structuring the Trial   157 profile, several Australian interview participants reported taking a proactive role in creating a trial timetable.112 Ray Finkelstein adopted the practice of sending to the parties, some weeks prior to trial, a timetable for trial that he had developed based on his assessment of the time each step in the trial was likely to take. Other participants required the parties to prepare similar timetables.113 During the Bell Group trial, Neville Owen developed a series of timetables, each named after a different Pope, which allocated a certain number of days or hours to various steps in the trial. Another participant reported devoting two pre-trial directions hearings to deciding how the trial was to run: ‘We have this amount of time, how are we going to fit into it?’114 Some judges were prepared to intervene further than setting a timetable for the trial. Peter McClellan explained a process of ‘phasing’ trials, employed in the Commercial List of the Supreme Court of New South Wales. In this process, the judge can direct the parties when to call their witnesses. Instead of hearing all the plaintiff ’s witnesses, followed by all the defendant’s witnesses, the judge might direct that all witnesses on a particular issue give evidence consecutively. This can ensure that the judge receives the evidence in a logical order. One obvious application of this tool is to hear all the relevant lay evidence before hearing from experts, so that the expert evidence is consistent with facts that have been established at trial. In the Commercial Court, it is standard practice to hear the expert evidence as a block after all the lay evidence.115 As with other techniques outlined in this chapter, structuring and timetabling trials in this way does not involve pursuing efficiency at the expense of justice between the parties. Rather, it employs judicial involvement and ingenuity in order to make the best possible use of the trial time, avoiding waste and ensuring that the material is delivered in a way that is useful to the trial judge. All that is compromised is the ability of the parties to decide how the case will be run. Even this need not be imposed on the parties against their wishes, as one participant explained: I’ve got great precision as to who’s giving evidence on any given day. And nobody has felt that they haven’t had their say because they’ve been able to tailor their durations in accordance with that timetable. A timetable which was set in agreement with them. I haven’t imposed it, but I have required it.116

Seen in this way, timetabling was a matter of negotiation rather than coercion. The Chancery Division of the High Court has recently introduced fixed-end trials: all trials are, save in exceptional circumstances, to be completed within a timeframe determined prior to the start of trial.117 This largely replicates the ­practice of strict timetabling that has been in place in the Commercial Court for some time.

112 Ray

Finkelstein, Peter McClellan, Neville Owen, Participant A6 and Participant A9 interviews. McClellan and Participant A6 interviews. 114 Participant A9 interview. 115 The Commercial Court Guide (n 35) 68 [H2.32]. 116 Participant E5 interview. 117 Judiciary of England and Wales, Practice Note: Fixed-End Trials, 28 April 2015. 113 Peter

158  Procedural Techniques in Mega-Litigation

VII.  Presenting Evidence Mega-litigation involves massive volumes of oral and documentary evidence. As well as exercising control over the order of events at trial, judges in mega-­ litigation have been willing to bring to bear a flexible, creative and active approach to the way in which evidence is presented.

A.  Documentary Evidence Mega-litigation typically involves vast quantities of documents. Even a tightly controlled discovery process might turn up thousands of relevant documents, creating the potential for a document-heavy trial. In English courts, claimants are required to file a trial bundle three days prior to trial, which is to include all ‘necessary’ documentary evidence.118 The Commercial Court Guide ­emphasises the importance of getting this right: parties are to begin negotiating the content of the trial bundle at least six weeks before the trial,119 and there must be careful consideration of which documents are truly necessary.120 The court ‘will have no hesitation in making a special order for costs against the person responsible’ if ‘costs have been wasted by the inclusion or copying of unnecessary documents’.121 Australian courts have generally not formalised the process for receiving ­documentary evidence in this way. However, it is common, in complex litigation, for parties to tender ‘bundles’ of documents rather than establishing the relevance and admissibility of each document separately. This process can save time by obviating the need to deal with each document. However, several interview participants found that these bundles usually included a large proportion of documents of, at best, marginal relevance.122 One participant had presided over a mega-litigation matter in which almost every document in a bundle of around 60 volumes proved to be relevant; but that participant said this situation was unusual, and that in other large cases only 10–20 per cent of documents in a bundle were relevant.123 Michael Black made a similar observation: Much of the material you see in a big case is never read and never even referred to. It’s wheeled into court by bored paralegals and first or second year solicitors who look as though they are wondering why they ever took up law. And the judge sits there and sees load after load of lever arch files being wheeled in, which the judge knows are unlikely

118 PD 39A § 3.2(11). 119 The Commercial Court Guide (n 35) 71 [J4.5]. 120 Ibid 71 [J4.4]. 121 Ibid 71 [J4.4]. 122 Michael Black, Ray Finkelstein, Malcolm Lee, Participant A9, Participant A5 and Participant A15 interviews. 123 Participant A9 interview.

Presenting Evidence   159 ever to be looked at. It seems to be done on some sort of precautionary principle that the material might turn out to be necessary and it’s best to be safe.124

Australian participants had developed techniques for dealing with over-inclusive tender bundles. For one, the solution lay in engaging in a dialogue with the parties at an early stage: It’s the issue identification which is absolutely critical. And the next question is ‘how do I go about resolving that disputed issue of fact or law in the most efficient manner possible? Who are you calling to give evidence about that? What are they going to prove? Where’s proof of this aspect?’ And so when I said to [the parties in a mega-litigation matter] ‘How are you going to prove the debts?’ [they said] ‘Oh, we’ve got 25 files’. ‘Uh-uh. I don’t want them. I do not want them. Imagine the cost of photocopying them. No.’125

One participant would receive a tender bundle, but decline to read, or accept into evidence, any document to which he was not taken during trial. And then at the end of the case I would ask the solicitors to take out all the documents not referred to. Often 90% or more were removed.126

Another had required the critical documents to be identified in opening submissions: There were these tens and tens of thousands of documents. And I said to [counsel] ‘you’re not just going to open by saying “well, there are the documents and all will be revealed unto you in the fullness of time.” In your opening you’ve got to take me to the documents that you say are critical to your case and tell me why.’127

Justice Steven Rares of the Federal Court of Australia has been reported as taking an even harder line on tender bundles in a case of mega-litigation, refusing to accept any document unless its relevance was explained:128 Why should I be made to go away and sit in my chambers, maybe understand it or not understand it properly as it’s intended to be understood? The only purpose of the documents is to persuade me that something happened or didn’t happen; giving me 20 volumes of stuff to read is not going to help me.129

It is clear that, if documentary evidence in mega-litigation is to be kept within reasonably manageable bounds, the lawyers for each party must make a serious effort, before trial, to identify the relevance of each document to the issues. As with other techniques discussed in this chapter, this relies on early identification of the real issues in dispute. 124 In a similar vein, Ray Finkelstein observed that in a typical complex case, 90% of the documents included in a tender bundle were not referred to at trial. 125 Participant A5 interview. 126 Ray Finkelstein interview. 127 Neville Owen interview. 128 Elizabeth Sexton, ‘Judges Turn to Oral Evidence to Cut Paperwork’, Sydney Morning Herald, 28 March 2011. 129 Quoted in ibid.

160  Procedural Techniques in Mega-Litigation Another important point, for the purposes of this book, is that judges do not appear to take the view that a larger number of documents necessarily leads to a more accurate decision. On the contrary, this can draw attention away from the most important documents. One participant described the overwhelming effect of receiving a mass of documents without guidance: People just hand you up a disk or a memory stick and say ‘well, that’s the evidence’ … and it’s a whole mass of material. Now … a judge has got to read it, synthesise it, deal with it if it’s relevant (and most of it isn’t) in a judgment.130

While restricting the scope of documentary evidence may mean that the parties cannot put in every document that they otherwise would have done, it need not diminish the quality of justice between the parties. The key is to let in only documents that are truly relevant – or, as The Commercial Court Guide puts it, ‘necessary’.

B.  Written Witness Statements While witnesses traditionally give their evidence verbally, judges may order that witnesses give evidence in written form.131 Witness statements are often used in complex litigation in both England and Australia. There are obvious efficiency benefits to providing evidence in writing: the plaintiff ’s evidence can be put before the court instantaneously, without the judge, court staff and counsel for all parties having to sit through hours of examination-in-chief. But there are some wellknown downsides of witness statements. The preparation of witness statements may take many hours of lawyers’ and witnesses’ time, with resulting expense.132 The finished product tends to be in the language of the lawyer, rather than that of the witness.133 And while witness statements may mean less time is spent in court, the judge will still need to read the statements. Interview participants’ views on witness statements ranged from cautious acceptance to outright rejection. No participant embraced witness statements without reservation. Sir Richard Aikens recalled hours spent preparing witness statements as a QC: Me as leading counsel, with the senior partner in the case, and probably my junior … and other solicitors. The witness nowhere to be seen, but hours of debate about what 130 Participant A15 interview. See also Justice Kenneth Hayne, ‘The Vanishing Trial’ (Paper delivered at Supreme and Federal Courts Judges Conference, Sydney, 23 January 2008) 19–20 on the ease with which technology allows lawyers to tender massive amounts of material with little attention to its relevance. 131 See, eg, CPR r 32.4; Uniform Civil Procedure Rules 2005 (NSW) r 31.1(3). 132 See Lord Woolf, Access to Justice: Interim Report (June 1995), Ch 22 [6]-[8]; Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000), [7.195]. 133 See, eg, Long Trials Working Party Report (n 2) 29 [69]; Lord Woolf, Access to Justice: Final Report (1996) ch 3.

Presenting Evidence   161 should go into the witness statement, how it should be phrased, and so forth. And I’m talking here about witness statements that were not just 10 pages long, but 40 or even 50 pages long. Vastly overblown. And it struck me that that was completely wrong. And it was an abuse of the system of introducing witness statements.

Another participant said: Nobody normally looks at witness statements unless they actually contain the evidence; most witness statements don’t. They contain a history of the world by reference to a load of documents that you can read if you want to.134

Two participants simply refused to use witness statements.135 Others had used witness statements in mega-litigation and, while acknowledging their drawbacks, had found them useful.136 Former South Australian Supreme Court judge David Bleby considered that the use of witness statements for all of the evidencein-chief in one mega-litigation matter made the trial ‘a lot shorter than it would have been’. Characteristically, the Commercial Court has led the charge to bring witness statements under control. The Long Trials Working Party emphasised the need for witness statements to be as short as possible, and identified a need for clearer expectations of what witness statements were to contain.137 The Commercial Court Guide now provides detailed guidance on the form and contents of witness ­statements, and also states that ‘[u]nless the Court directs otherwise, witness statements should be no more than 30 pages in length’.138

C.  Objections to Evidence A further disadvantage of exchanging witness statements before trial is that it gives the other side an opportunity to make swathes of technical objections to the evidence.139 Attempts to tender large numbers of documents can also attract objections. All these arguments about admissibility can consume large amounts of court time. Several Australian interview participants had devised methods of dealing efficiently with large numbers of objections. While the detail of these methods varied, the central concept was similar: objections are divided into categories; the judge hears argument and makes a ruling on one objection in each category; that ruling is applicable to all objections in that category.140 This saved large amounts 134 Participant E3 interview. 135 Participant A4 and Participant A15 interviews. 136 David Bleby, Participant A5, Participant A9 and Participant E10 interviews. 137 Long Trials Working Party Report (n 2) 29–30. 138 The Commercial Court Guide (n 35) 63 [H1.1(h)] (emphasis in original). 139 See, eg, Justice Arthur R Emmett, ‘Towards the Civil Law? The Loss of “Orality” in Civil Litigation in Australia’ (2003) 26 University of New South Wales Law Journal 447, 460. 140 Robert McDougall, Neville Owen and Participant A9 interviews. See also Australian Securities and Investments Commission v Rich (2009) 236 FLR 1, [41] 25; Idoport Pty Ltd v National Bank Ltd [2000] NSWSC 1250.

162  Procedural Techniques in Mega-Litigation of time that would otherwise have been spent arguing about each objection. Other participants took the approach of encouraging parties to focus only on those objections that really mattered.141 David Bleby recalled that ‘sheets and sheets’ of objections in one mega-litigation trial ‘fell away’ over the course of the trial: A lot of the objections were the sort of objections you’d take in a criminal trial before a jury – perhaps hearsay evidence. There was hearsay evidence, but I said ‘I’m not going to act on hearsay evidence, I know what hearsay is, let’s get on with it, let’s not argue about it.’ There were objections at that sort of level, and in the end I think they either agreed that certain evidence would be admissible on certain conditions, or [couldn’t] be bothered [objecting].

Robert McDougall expressed similar frustration: I can’t stand wasting time on objections to evidence because they achieve absolutely nothing. I’m not a jury, I’m perfectly capable of seeing that evidence is inadmissible or irrelevant and ignoring it. So why do you spend half an hour arguing on it?

Another participant listed ‘not entertaining facile objections to evidence’ among the steps he took to improve efficiency without compromising justice in mega-litigation.142 Neville Owen took a ‘pragmatic approach’ to rulings on the admissibility of evidence in the Bell Group trial.143 Owen described his approach to objections to expert evidence: In the end these are questions of weight. That’s what I do for a living. Trust me. And just as an example, … the plaintiff was the liquidator of the [relevant] companies. … One of the issues in the case was: were the companies insolvent on a particular day? [The defendants said] ‘He can’t give an opinion on that’. I said ‘yes he can’. ‘No, he’s too close to the case.’ ‘That’s a matter of weight. Technically you might be right.’ They were putting to me reams and reams of authority on that issue, the other side were putting up reams and reams of authorities on the counter-issue. [I said] ‘It’s a question of weight. I’ll see him in the witness box, if I think he’s not being objective and dispassionate in ­expressing that particular opinion … then it’s going to count in weight. But I’m going to let it in.’

This pragmatic approach to the rules of evidence was aimed at improving ­efficiency by cutting short legal argument on issues that had marginal bearing on the real issues. It illustrates the flexibility with which the mega-litigation judge approaches procedure: the rules of evidence need not be applied in a strict or technical manner.

D.  Limits on Cross-Examination The reception of oral evidence is one of the most time-consuming aspects of a ­typical mega-litigation trial. There may be many witnesses, some of whom may

141 David

Bleby and Robert McDougall interviews; Participant A6. A6 interview. 143 Owen ‘Surpassing Sisyphus’ (n 75) 8–9. 142 Participant

Presenting Evidence   163 give wide-ranging evidence. As discussed above, the time spent in court can be reduced by receiving evidence-in-chief in writing.144 Witness statements, however, do not obviate the need for cross-examination. In mega-litigation, crossexamination of a single witness can continue for days, weeks or even months.145 In view of the propensity of mega-litigation judges to be active participants in shaping the trial, vigorous judicial intervention in cross-examination might be expected. On this point, there appears to be a divide between English and ­Australian practice. In England, limits on cross-examination are an accepted part of commercial litigation. In Australia, judges seem more reluctant to impose such limits – they are one of the last bastions of party control of litigation. In England, the Long Trials Working Party had no hesitation recommending that court-imposed time limits on cross-examination ‘should become the rule in all Commercial Court trials’, and that this was ‘particularly important in long trials’.146 This is now reflected in The Commercial Court Guide. The trial timetable should include allocations of time for the cross-examination of each witness.147 One participant explained that limiting cross-examination did not lead to injustice: You know, I’ve learnt over many decades that cross-examination that goes on for more than a day, a court day, four hours, five hours, is counterproductive for everybody. And it doesn’t need to, because it turns into bullying and harassing and it’s unjust. It’s ­unproductive. It gets nowhere, save in the most exceptional circumstances.148

In Australia, limiting cross-examination is possible but less well accepted. For example, part-way through the trial in the Idoport mega-litigation in the Supreme Court of New South Wales, Einstein J announced his intention to place strict limits on cross-examination for the remainder of the trial.149 He demonstrated evident reluctance in taking this step, acknowledging that this was ‘a highly s­ensitive area’,150 but thought it necessary, given that unbridled cross-examination of the remaining 160 witnesses would consume 3.8 years of court time.151 In the C7 ­judgment, Sackville J noted that: While (perhaps wrongly) I did not impose rigid time limits on cross-­examination, I  attempted to insist, to the maximum extent practicable, on adherence to the cross-examiner’s estimate of the time required to complete the questioning of each witness.152 144 See above at 160–61. 145 To take a striking, if dated, example, in Pacific Acceptance Corporation Ltd v Forsyth the principal witnesses for the plaintiff and defendant were in the witness box for four months and three months respectively: Pacific Acceptance Corporation Ltd v Forsyth (1970) 92 WN (NSW) 29, 39, 44. 146 Long Trials Working Party Report (n 2) 51 [149]. 147 The Commercial Court Guide (n 35) 36 [D18.4]. 148 Participant E3 interview. 149 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 868, [75]. 150 Ibid [75]. 151 Ibid [76]. 152 Seven Network Ltd v News Ltd [2007] FCA 1062, [24].

164  Procedural Techniques in Mega-Litigation Australian interview participants were similarly ambivalent about placing limits on cross-examination. One acknowledged that time limits were sometimes ­necessary.153 Others, as discussed earlier, established trial timetables, which had the effect of limiting the time available for cross-examination. Ray Finkelstein said he would generally enforce a trial timetable simply by looking at the clock and saying ‘time is up’. There was, however, ‘a degree of flexibility’: ‘I kept parties pretty closely to the timetable, without being too irrational about it.’ He did not think that imposing time limits fundamentally changed the way in which counsel presented the client’s case; ‘it just means that they had to be efficient. … They stick to the issues much more closely than if they had been unsupervised.’ Peter McClellan reported that in some cases he would strongly encourage counsel to truncate the cross-examination: I not infrequently intervene in someone’s cross-examination and tell counsel bluntly ‘what you’re doing now is not helping me. Let’s move on to something else …’ But that’s a matter of the management skill of the judge and the particular circumstances of the case.

In Bell Group, Neville Owen found the mere threat of shutting down cross-­ examination was effective: I always held the threat over them that unless they behaved themselves I would put a time limit on cross-examination, but it never got to that. … I think they were always aware of that, they knew I was serious, that I would do it.

He never had to make good on his threat. For these participants, limiting cross-examination was not a blunt coercive instrument; rather, it was a tool to be used with care and subtlety, relying on the co-operation of counsel as much as the threat of sanction. One participant said he had never felt the need to place a limit on cross-examination, and doubted whether he would ever do so; counsel ‘would want to be pretty long winded’ before this option was even considered.154 Overall, there was hesitation about interfering with what was regarded as an almost sacred component of the trial.

E.  Expert Evidence Mega-litigation almost inevitably involves extensive expert evidence.155 The last 20 years have seen significant developments associated with expert evidence and there is now extensive literature on this topic.156 The aim of this section is not

153 David Harper interview. 154 Participant A4 interview. 155 See discussion in chapter three, section IIIA. 156 See, eg, Ian Freckelton and Hugh Selby, Expert Evidence (Thomsons looseleaf); Tristram ­Hodgkinson and Mark James, Expert Evidence (Sweet & Maxwell, 4th edn, 2014).

Presenting Evidence   165 to repeat or summarise that literature, but rather to identify some trends in the way that courts handle expert evidence in mega-litigation. These trends share similarities with many of the other procedural techniques discussed in this chapter: intensive, creative judicial case management is used to ensure evidence is presented in a way that is useful to the court, but not always in accordance with the parties’ wishes. Judges can take control of expert evidence at an early case management ­conference. The Long Trials Working Party recommended that in heavy and complex cases, ‘the judge must take a more active part in the question of whether expert evidence is really needed on a particular topic, and if it is, the particular issues that evidence will cover.’157 In the Commercial Court, the judge may make orders limiting the length of an expert report and specifying the issues it must address.158 Australian courts have similar powers.159 Wayne Martin described taking an early, proactive approach to expert evidence in a mega-litigation matter: What I said was … ‘we’re going to have a conference, we’re going to identify the fields of expertise in which we think expertise is required, then the questions that need to be answered within those fields of expertise, and then the factual assumptions that can be made by the experts on the basis they’re not contentious, and then the various permutations of the factual possibilities that are contentious.’ So that then you’ve got the [expert] opinion covering as many of the possible factual outcomes as might emerge from the case, because of course the expert opinion is only as good as the facts on which it’s based; if the expert assumes facts that don’t match those found by the judge the opinion is useless. So that way you hopefully produce the result of the experts confronting each other head on …

Another Australian participant had adopted the following procedure in relation to large-scale litigation: [The parties are told] at day one: ‘you are not to retain an expert without you giving to all the other parties affected by that proposed expert’s report the following three things: … Their name, their CV, the questions you propose to ask that expert and the materials you propose to give to him or her.’ And then the other parties are given a period of time to comment on that and if there’s no objection then they’ve lost their right to object. … And so basically we get them, up front, to agree all of those things.160

Once the areas for expert evidence have been identified, the judge in mega-­ litigation will often require the experts to engage in a conference before trial.161 In an expert conference, the experts for all parties meet prior to trial and prepare a joint report recording the issues on which they agree and disagree. The process 157 Long Trials Working Party Report (n 2) 31 [78]. 158 The Commercial Court Guide (n 35) 65 [H2.4]. 159 See, eg, Federal Court of Australia, Expert Evidence Practice Note (GPN-EXPT), 25 October 2016, [6.2]. 160 Participant A5 interview. 161 For example, this is the normal practice in the Commercial Court: The Commercial Court Guide (n 35) 67 [H2.19].

166  Procedural Techniques in Mega-Litigation ‘is intended to save time and money by identifying before the trial the real issues of disagreement, and the common ground relating to the relevant matters’.162 Several interview participants spoke about the usefulness of the expert ­conference:163 ‘Cuts down money. We end up with joinder of issues and not ships passing in the night, and it’s better for us.’164 The judge may have an active role to play in setting the procedure and agenda for the expert conference, including setting the precise questions that the experts are to address.165 Judicial intervention in the management of expert evidence is not confined to the pre-trial processes. Concurrent evidence, colloquially known as ‘hot-tubbing’, is now a well-established technique for presenting complex expert evidence to a court.166 The procedure originated in Australia but has spread to other jurisdictions including England.167 In this procedure, two or more experts whose evidence relates to the same issue are sworn in and give evidence at the same time, with questioning generally led by the judge rather than by counsel. Peter McClellan has described concurrent evidence as essentially a discussion chaired by the judge in which the various experts, the parties, the advocates and the judge engage in a cooperative endeavour to identify the issues and arrive where possible at a common resolution of them.168

McClellan has described the general process of taking concurrent evidence: The experts are sworn together and, using the summary of matters upon which they disagree [drawn from the conference of experts], the judge settles an agenda with ­counsel for a ‘directed’ discussion, chaired by the judge, of the issues in disagreement. The process provides an opportunity for each expert to place his or her view on a particular issue or sub-issue before the court. The experts are encouraged to ask and answer questions of each other. The advocates also may ask questions during the course of the discussion to ensure that an expert’s opinion is fully articulated and tested against a contrary opinion. At the end of the discussion, the judge will ask a general ­question to ensure that all of the experts have had the opportunity to fully explain their positions.169

It is obvious from this description that, like many of the other techniques discussed in this chapter, concurrent evidence requires intense preparation and involvement on the part of the judge.

162 New South Wales Law Reform Commission, Expert Witnesses, Report 109 (June 2005) 92 [6.34]. 163 Peter McClellan, Robert McDougall, Participant A4 and Participant A5 interviews. 164 Participant A5 interview. 165 See Expert Witnesses, Report 109 (n 162) 94–95 [6.43]. 166 See, eg, Justice Peter McClellan, ‘New Method with Experts – Concurrent Evidence’ (2011) 3 Journal of Court Innovation 259. 167 See Civil Justice Council, Concurrent Expert Evidence and ‘Hot-Tubbing’ in English Litigation Since the ‘Jackson Reforms’: A Legal and Empirical Study (2016) viii. 168 McClellan (n 166) 264. 169 Ibid 264.

Presenting Evidence   167 Interview participants who had used the ‘hot-tub’ found it more useful than sequential evidence: In virtually every case … concurrent evidence has been far more useful at disclosing the issues than sequential evidence. It takes more work from the judge because you have to get on top of the issues before – you can’t let the evidence unfold as you would ordinarily do. So there’s more upfront work. But it is incredibly useful to be able to hear one expert’s opinion and then literally go [to the other expert] and say ‘what do you say about that?’ … Just brings the issues into focus far more efficiently I think.170 I had mining engineering experts – half a dozen perched in the jury box in a trial court, and they all went along swimmingly, pointing to things and drawing on the whiteboard and so on. And it was great. I understood the evidence, they narrowed their disputes, they cross-examined each other courteously and efficiently, and I had a very clear understanding of where that part was going.171

Another advantage of concurrent evidence was a shift in control of the process:172 It takes the expert witness away from the control of the lawyers, and the lawyers hate it because they lose control. And they complain about it, to which of course the response is ‘well, that’s why we’re doing it’. Because we want the expert, not you [the lawyer] controlling the expert.173

Two participants, however, reported that concurrent evidence was not always successful. One said: ‘Sometimes it’s brilliant, sometimes it’s not so brilliant. It’s hard to work it out until you’re in the middle of it, that’s the sad thing.’174 The Civil Justice Council’s review of concurrent evidence noted that the personalities of, and relationship between, the experts could influence the success of the exercise.175 This was borne out by one interview participant, who recalled a case in which the experts ‘just hated each other … so I terminated that concurrent session’.176 Ray Finkelstein recalled using a process similar to that of taking concurrent evidence, but with even less of a role for lawyers. In a case involving more than 30 experts on several different topics, Finkelstein divided the experts into several groups, according to the issue on which they were giving evidence. He then sat around a table with each group and took the evidence of the experts: I had the lawyers sitting on the other side of the room, and I said I would lead the evidence in chief and the lawyers were not allowed to interrupt. … Previously I had gone through all the reports and started off by dealing with the topics I wanted ­specifically 170 Participant A9 interview. 171 Robert McDougall interview. 172 Peter McClellan and Participant A15 interviews. Ray Finkelstein reported a similar benefit from his modified version of concurrent evidence, discussed below at 167–8. 173 Peter McClellan interview. Similar observations about the respective roles of the parties and judge have been made about concurrent evidence in English courts: Civil Justice Council (n 167) 18–19. 174 Robert McDougall and Participant A5 interviews. 175 Civil Justice Council (n 167) 41–42. 176 Participant A13 interview.

168  Procedural Techniques in Mega-Litigation addressed, being those which I either did not understand or not all the experts dealt with. I had worked out a list of questions for each expert. … And then I had ascertained where the experts differed on issues … I then … asked them to explain those areas … why there were different opinions. I did all of that and at the end of that process I allowed counsel [to] examine [the experts] for only one hour. Some took the opportunity, some did not. That was because at the end of that process most of the evidence was out, all the explanations were made.

The keys to the success of this process were that it was ‘as informal a process as could be done’ and that it meant ‘excluding the role of counsel’. Finkelstein found the process extremely efficient: ‘I dealt with 30 experts in about five days. In ­ordinary court time it would have taken five weeks.’ Expert evidence has been a lively area of development in complex litigation over the last decade. The sheer volume of expert evidence in mega-litigation has pushed judges to try innovative techniques, most of which involve reducing time and cost, while also making the evidence easier for the judge to absorb. Once again, the response to these challenges of mega-litigation has been to find better ways of handling the evidence. And, once again, the response in each case has been characterised by a high degree of active involvement on the part of the judge. Judicial passivity, in this context, does not appear to be an option.

VIII.  Controlling Submissions The involvement of the mega-litigation judge in the management of a case is not limited to the pre-trial processes and the presentation of evidence. The judge can also influence the way in which legal argument, particularly in opening and closing submissions, is presented. Because it involves a multitude of contested issues, mountains of evidence, and lawyers prepared to leave no stone unturned, megalitigation lends itself to extremely lengthy opening and closing submissions.177 This leaves the judge with the large task of reading and synthesising the material. One interview participant said a challenge of mega-litigation was to ‘avoid the parties snowing you with a huge amount of material’178 while another said the mega-litigation judge may have to read ‘1000 pages of written submissions, many of which are not the least bit helpful’.179 Judges have responded to these challenges by assuming some control over the presentation of submissions.

177 There were close to 5,000 pages of closing submissions in C7: Seven Network Ltd v News Ltd [2007] FCA 1062, [11]; almost 37,000 pages of closing submissions in Bell Group: Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239, [960]; and over 4,000 pages of closing submissions in ASIC v Rich: Australian Securities and Investments Commission v Rich (2009) 236 FLR 1, [23] 21. 178 Participant A6 interview. 179 Participant A8 interview.

Using Technology   169 One technique is to impose page limits on written submissions, or time limits on oral submissions.180 Some interview participants reported that they had placed such limits on submissions in mega-litigation.181 This English participant was particularly robust: I always used to say ‘I will hear submissions from you for two hours. Not a penny more.’ … I strictly limit pleadings, strictly limit witness statements, strictly limit submissions. Because that gets completely out of hand, simply because you get information overload in the judge. You simply can’t absorb it.182

Note a recurring theme of this chapter: more procedure does not mean more justice. For this participant, unlimited submissions were unhelpful. In contrast, some Australian participants were cautious about imposing limits on argument. Peter McClellan said it was ‘a case by case exercise, and you’ve got to be very careful that you don’t thereby deprive someone of proper process’. Another Australian participant said, while there were ‘great virtues’ in limiting submissions, you’ve got to be careful not to, as it were, bite off your nose to spite your face. That you don’t impose such arbitrary page limits that you are denying yourself as a judge the assistance that well-constructed written submissions … can provide.183

Another participant took the approach of encouraging, rather than directing, shorter submissions: The judge has to hammer home that long submissions will not help. I will try to discuss this with the parties. I will usually say, for example, that submissions should be about 20 pages. [I will tell them that] I don’t want a novel – just an outline to direct me to the critical issues of law and fact and where I can find the relevant evidence.184

Another technique for limiting submissions is the trial timetable described earlier in this chapter. A timetable sets mutual expectations about the time that will be devoted to each party’s submissions, and these can be enforced in a nuanced way.

IX.  Using Technology No discussion of techniques for managing mega-litigation would be complete without acknowledging the role played by modern technology. Mega-litigation 180 See, eg, Evan Bell, ‘Judicial Case Management’ (2009) Judicial Studies Institute Journal 76, 91. The Long Trials Working Party recommended that, unless ‘very special reasons’ existed, oral openings in the Commercial Court should not exceed two days: Judiciary of England and Wales, Long Trials ­Working Party Report (n 2) 50 [145]. 181 Participant A4 and Participant A16 interviews. 182 Participant E3 interview. 183 Participant A16 interview. 184 Participant A8 interview.

170  Procedural Techniques in Mega-Litigation has been at the forefront of the innovative use of technology in the court system. One of the first major electronic trials in Australia was the Estate Mortgage trial in the Supreme Court of Victoria, which ran for 80 sitting days in 1997.185 A special ­courtroom, containing over 50 computer monitors, was set up for the trial.186 Today, it is almost a given that mega-litigation trials will be conducted with the assistance of technology. In the Commercial Court, the use of IT is ‘strongly encouraged’ and is generally considered at the first case management c­ onference.187 English and Australian interview participants alike pointed to technology as a crucial tool for managing mega-litigation.188 While the term can be applied to various arrangements,189 an ‘electronic’ or ‘paperless’ trial typically involves storing the important documents in the case (such as filed documents, exhibits and submissions) in a database which is accessible to all parties, and to the judge, both inside and outside the courtroom. Computer screens within the courtroom can display a document to all parties at the same time. Such a system saves significant time and space. One lawyer involved in the Estate Mortgage case suggested that, had the 1.5 million documents in the electronic court book been required in hard copy, approximately 400 metres of 4-level shelving would have been required; he suggested the Melbourne Cricket Ground would have been an appropriate venue for the trial.190 David Bleby, who used technology extensively in several mega-litigation matters, explained: The movement of paper around the courtroom … takes up a huge amount of time, because everyone’s got to reach the same page in the same lever-arch folder before you can proceed, and that’s the witness, counsel and judge. And just the movement of that stuff around the court takes a huge amount of time.

Other mega-litigation judges have echoed this observation that technology can reduce the time spent shuffling documents in court.191 It was estimated that the use of technology reduced the hearing time by 25 per cent in one mega-litigation trial192 and by 50 per cent in another.193 Even allowing for the impressionistic

185 Parliament of Victoria Law Reform Committee, Technology and the Law (May 1999), 174 [10.11]. See Murphy v Lew (Unreported, Supreme Court of Victoria, Smith J, 31 October 1997). 186 Ibid. 187 The Commercial Court Guide (n 35) 70–71 [J.3]. 188 David Bleby, David Harper, Robert McDougall, Neville Owen, Participant A4, Participant A5, Participant A6, Participant A7, Participant E4 and Participant E5 interviews. 189 For some descriptions of the features of electronic trials, see Allison Stanfield, Computer Forensics, Electronic Discovery and Electronic Evidence (LexisNexis, 2009) ch 6. 190 ‘Estate Mortgage Post Mortem’, provided by the Honourable Justice Tim Smith (copy on file with author) 8–9. 191 David Harper interview; Seven Network Ltd v News Ltd [2007] FCA 1062, [10]. 192 Justice David Bleby, ‘The First Electronic Trial, South Australian Supreme Court’, paper prepared at the request of the Historical Collections Librarian of the Supreme Court library for the purpose of recording some of the judge’s reactions as trial Judge to the electronic aspects of the trial, October 2002, 5. 193 Parliament of Victoria Law Reform Committee (n 185) 174 [10.11], 176 [10.15].

Using Technology   171 nature of these estimates, it is clear that technology can substantially reduce time spent in court (and, therefore, legal costs and consumption of court resources) without any reduction in the rigour or fairness of the hearing. Three participants pointed out a further advantage of paperless trials: allowing the judge easily to take the material home.194 This participant was enthusiastic: I love running electronic trials. It’s just blissful to be able to go home with my computer and not have to take home boxes of books. Being able to word search, you know, ‘didn’t X say something in a document somewhere’ and not having to sit there and flick through trying to find it.195

Neville Owen, who used an electronic court in Bell Group, has pointed out that access to electronic versions can help the judge make sense of a huge number of interrelated documents: The real benefit of the electronic court book is its capacity to facilitate the tracking, ­linking and searching of the court record in all its forms. The ability to take an individual document and to identify within a matter of seconds every reference to it in a pleading, a witness statement, a submission or a transcript ought not to be underestimated.196

There are other ways in which technology has been employed in mega-litigation. Electronic filing enables all parties to have access to documents as soon as they are filed. Real-time transcript allows teams of lawyers to follow the progress of a trial from remote locations. Video links can be used to take the evidence of remote witnesses – particularly useful in Australia, where geographical distance adds significantly to the cost of bringing witnesses to the city in which the trial is taking place.197 Two participants had found technology helpful in facilitating ­simultaneous translation in trials that featured a large number of parties and witnesses who did not have English as their first language.198 Those in the courtroom were able to follow the action in a number of different languages by donning a headset tuned to the appropriate channel. The potential for technology to enhance the mega-litigation process is limited only by the ingenuity of the participants. Ray Finkelstein, for instance, had set up a closed-circuit television system to stream the taking of evidence from expert witnesses in a round-table setting to a public area. He explained that he did not want the process interrupted by people entering and leaving the room while the

194 Michael Black, Participant A5 and Participant E4 interviews. 195 Participant A5 interview. David Bleby also commented on the assistance of technology at the judgment writing stage. However, David Harper, who had used an electronic court room in a megalitigation trial that settled, doubted whether the technology would have assisted with writing the judgment. 196 Owen, ‘Surpassing Sisyphus’ (n 75) 17. 197 The benefits of video link evidence may not be as great as they first appear. For one thing, differences in time zones may mean there is a limited window of time each day in which the evidence of a witness in the opposite hemisphere may be taken: see Australian Securities and Investments Commission v Rich (2004) 49 ACSR 578, 581–89. 198 Participant E4 and Participant E5 interviews.

172  Procedural Techniques in Mega-Litigation witnesses were being questioned, but was conscious of the open court principle and the parties’ express wishes to observe the process. Cutting-edge technology is expensive. Most courts fight a constant battle for resources and infrastructure, struggling to muster the resources for an acceptable level of information technology.199 How, then, can a court justify investing in technology for a small number of cases of mega-litigation, when that technology may be out of date by the time the next mega-litigation case rolls around? Courts have adopted a simple solution: requiring the parties to pay for the system of technology used for the trial.200 This enables the court to reap the benefits of technology without the associated cost. Public justice and public efficiency are the big winners here. There should also be an overall efficiency dividend for the parties, on the basis that technology creates time and cost savings that exceed its price tag. This is all very well in commercial mega-litigation, in which well-resourced parties are contesting entitlement to money. It is problematic in non-commercial mega-­litigation, in which there may be a substantial asymmetry of resources. As indicated in chapter three, non-commercial mega-litigation cannot be treated in the same way as commercial cases.

X.  Managing Relationships The techniques discussed in this chapter so far have been practical ways of making the presentation of evidence and argument in mega-litigation more manageable. But one major challenge of mega-litigation has nothing to do with the legal or factual issues. That is the interaction, at a personal level, between the people involved in the case. As discussed in chapter four,201 mega-litigation tends to heighten lawyers’ adversarial instincts. Lawyers in a mega-litigation trial spend the better part of each working week for months or years in the same court room, and many more hours out of court in correspondence with one another. Engagement on opposing sides of an adversarial exercise over such a period must place strain on any relationship. The mega-litigation judge, too, is typically an active participant in discussions about the direction of the case from an early stage. There is, therefore, a long-running relationship between judge and lawyers throughout the life of a mega-litigation matter. As Neville Owen’s reflections illustrate, this relationship is as vulnerable to tensions as any other: It’s inevitable that there will be conflict between bench and bar from time to time. An individual counsel may feel very strongly about a particular area or a particular issue 199 See, eg, Penny Darbyshire, Sitting in Judgment (Hart Publishing, 2011) 436–38, observing that the state of IT in English courts was ‘almost too painful to describe’. 200 Participant E4 and Participant E5 gave examples of complex systems of technology, of which the parties bore the cost. 201 Chapter four, section IIE.

Managing Relationships  173 or a particular approach, and you rule against them, and you rule against them again, and you rule against them again, and they get touchy. That’s hard enough in any trial. But in mega-litigation it becomes a real issue. You [have] to be so careful to try and keep everyone on side.

Similarly, an English participant said: I try to have an atmosphere in court which is not too tense. People are not too good when they’re tense. You have to set the tone. You know you’re going to be with these people for years.202

Tension between judge and counsel can not only hamper the ability of the judge to manage the case efficiently; it can also lead to allegations of bias203 and threats by lawyers to cease acting.204 One interview participant nominated ‘the management of counsel’205 as a key concern for the mega-litigation judge. Participants had developed some imaginative techniques for dealing with these interpersonal issues. During Bell Group, Neville Owen hosted an annual endof-year function to which all legal representatives for all parties were invited: Whether they came or not was up to them, but from the articled clerks and the paralegals through to the silks, the only stipulation was that I’m not going to do it unless there are representatives of all sides. And that was successful because you’d see they’d be in their own groups for the first 15 minutes but then a couple of wines or a couple of beers under their belts and they’d start to mingle. And I think that was very beneficial.

Owen also prided himself on managing relationships within the court room: I think I got the best out of counsel. You only do that by not putting them off-side. You’ve still got to be firm of course, because that is one of the big differences between mega-litigation and ordinary litigation, that the chances of you falling out with counsel are greater. It makes life very tough if that happens. And the same as between counsel. … If they started to bicker across the bar table I would stamp on it immediately by saying ‘look, my job’s hard enough as it is. It’s made even harder with you people bickering and sniping at one another across the bar table. Stop it.’ It was happening early in [the trial], … but it stopped … because counsel knew that I was serious, I just didn’t like it. It was better for them just to mutter under their breath and take it outside if they wanted to.

Other participants also emphasised the role of the judge in creating a ‘culture of co-operation rather than a culture of confrontation’206 between the parties.

202 Participant E2 interview. 203 See IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151, in which it was argued that the attitude of an interventionist case managing judge manifested hostility towards one of the parties. The argument that this amounted to an appearance of bias was unsuccessful. 204 In the Centro litigation, lawyers for one party considered withdrawing from the case after the trial judge said she may make costs orders against solicitors if a particular line of argument were pursued: Nick Lenaghan, ‘Threats to Lawyers in Centro Case’, Australian Financial Review, 18 April 2012, 49. 205 Participant A6 interview. 206 Michael Black interview.

174  Procedural Techniques in Mega-Litigation One said ‘you can encourage a spirit of cooperation, even though the parties may be spitting at each other’.207 Robert McDougall described his task in one megalitigation matter as ‘getting parties who don’t really like each other a great deal to co-operate in producing a dispute resolution process that will get them to the end of the track’: Obviously I can give directions and they’re stuck with it … But getting them to come to agreement is a much better way of doing it. … I discuss it with them, I don’t just say ‘this is what I’m going to do’ – and I am prepared to listen and change and adapt a procedural solution into which everyone’s had input. I’ve got what I want, which is that efficient breaking up of the issues. They’ve got what they want, which is a way towards finding who wins and who loses.

Some interview participants had changed the physical setting of hearings in order to defuse the tension between parties. Ray Finkelstein explained that, when taking expert evidence in the way explained earlier,208 he made sure it happened around a table in a meeting room rather than in a courtroom, ‘because I wanted to change the atmosphere’. Several participants routinely held case management conferences in mega-litigation outside the courtroom: ‘an informal setting with [the judge] sitting down, cup of coffee, talking to everyone around the table’.209 Malcolm Lee explained the advantages of the ‘round table’ management conference: It allows the judge to perhaps offer more than he’d be able to offer in an open court situation. It’s a much more informal relationship with counsel. I suppose it has some similarity to a mediation process, without it being mediation. It is a vehicle in which the attention of the parties can be drawn to the areas of the pleadings that should be regarded as peripheral, and seeing that the cardinal points are those to which the directions are being given to get that ready for trial. That’s much more difficult to do in an open court directions hearing, and particularly if it’s one of a number of matters that are listed in that directions day or before court starting on another day. … You can exercise much more discipline in relation to counsel’s approach than would be the case if it was in open court directions.

Wayne Martin frequently used round table ‘strategic conferences’ to create a more ‘collegiate’ atmosphere: I think as soon as you hold it in a courtroom, people adopt an adversarial position. They assume that somebody will get up and make all their argument, and advance their position, as forcefully as they can. And then somebody will get up and respond to that, denying what’s been said and then putting their own position. And so you just immediately get into this adversarial environment. If you’re sitting around a table, and you raise issues, people can speak after each other, … go back and forward, back and forward, back and forward. The main advantage, I think, is that when you’re around a table, the



207 Participant

E4 interview. 168–69. 209 Participant A4 interview. 208 At

Conclusion  175 culture I try and engender is that because it’s a more collegiate environment, it’s a more collegiate atmosphere. … What I say at the strategic conference is that we’re all here because we all have a common problem. The common problem is – how are we going to resolve this dispute as quickly and effectively as we can, consistent with the interests of justice. And that is the common task in which we are all engaged. We all have that common objective. We might see different ways of achieving that objective, but we have that common objective, and then use that as a basis for moving forward as collegiately as we can and as [non]-adversarial as we can. … And it actually does work. I use conference rooms as often as I can in lieu of court rooms.

The use of such techniques shows that the task of the mega-litigation judge is not confined to finding facts and applying the law. There is a human dimension to the role that calls for skills and techniques that go beyond the purely legal.

XI. Conclusion This chapter has presented an overview of the procedural techniques judges use in mega-litigation. It has demonstrated how the characteristics of the megalitigation judge identified in chapter nine translate into practice. Active case management is crucial. This management is not confined to supervising procedural matters; the judge is involved in defining the substantive issues at the heart of the dispute. From the definition of these issues, subsequent management decisions flow. The judge plays an active part in deciding exactly how and when the issues are to be determined. In addition, judges in mega-litigation are flexible in moulding traditional procedures to the needs of each case, and creative in inventing new ones. These characteristics all reflect an acceptance that civil procedure is not solely about doing justice between the parties: public justice, public efficiency and party efficiency are also legitimate goals. The mega-litigation judge employs active, flexible and creative means in order to pursue these goals. At the same time, mega-­litigation judges are acutely conscious of the need to be fair. At times – for example, when considering whether to limit cross-examination or submissions – this has curtailed the pursuit of efficiency. This attitude was particularly noticeable in Australian participants. While the kinds of techniques used were broadly similar in Australia and England, there was some difference in the degree to which the techniques were systematised. In Australia, judges had adopted these techniques largely on their own initiative, on a case-by-case basis, and often in creative and idiosyncratic ways. In England, especially in the Commercial Court, many of these techniques were adopted as a matter of course, albeit tailored to the circumstances of each case and the proclivities of each judge. There appeared to be two reasons for this: first, the legacy of the Long Trials Working Party and its broadly accepted reforms; and, secondly, the nature of the Commercial Court, which is a tightly knit community of judges, lawyers and other users who share a common commitment to running complex litigation efficiently.

176  Procedural Techniques in Mega-Litigation The techniques covered in this chapter are not unique to mega-litigation. They are consistent with broader developments outlined in chapters six, seven and eight: the rise of case management and the migration of control over process from the parties to the judge. While mega-litigation may not call for a completely different approach to procedure, it does require judges to make use of the full range of procedural tools at their disposal, to push the boundaries of active case management, and to experiment with new procedures. In mega-litigation, the procedural trends present in civil litigation generally are seen at their greatest intensity. The central question in this book is how judges reconcile the aims of justice and efficiency in mega-litigation. How does the overview of procedural techniques in this chapter help to answer this question? Many of the techniques are directed towards improving efficiency by reducing the time spent on matters not central to the dispute. Many of them involve using creative and flexible means to design better ways of dealing with mega-litigation. Chapter two introduced the proposition that efficiency need not be antithetical to justice. The creative, active, flexible approach of mega-litigation judges may be non-traditional and may mean that the parties no longer have control over the process. But this approach, as manifested in the techniques outlined in this chapter, offers a way of improving efficiency without compromising justice. Some of the techniques outlined in this chapter – for example, c­urtailing ­objections to evidence and controlling the reception of expert evidence – do restrict the parties’ ability to put their case before the court in the way they choose. At times, this may reflect a choice by the judge to place efficiency, and public justice, objectives ahead of justice between the parties, given that the cost to justice between the parties is minimal. More often, though, these techniques are the consequence of realignment in the roles of the parties and the court. Judges have taken control of expert evidence because they have found the parties do not present the evidence in a way that the court finds useful in determining the issues. The parties lose the freedom to conduct litigation in the way they choose, but they do not lose the right to have the disputed issues determined by a court. As several participants commented, giving the parties free rein to put forward evidence and submissions often does not help achieve justice in the case; instead, it risks overwhelming the judge with a tsunami of marginally relevant material.

11 Justice and Efficiency in Mega-Litigation Previous chapters have looked at some of the attitudes and techniques with which judges manage mega-litigation. Building on these foundations, this chapter offers three answers to the central question of this book: how do judges reconcile the demands of justice and efficiency in mega-litigation? The three answers are, first, that judges use innovative means to achieve both efficiency and justice; secondly, that sharp focus on the issues promotes efficiency without diminishing the quality of justice; and, thirdly, that any conflict between efficiency and justice is likely to be resolved by recourse to the judges’ expert intuition. All of these three answers take efficiency seriously. The research on which this book is based does not support a conclusion that mega-litigation judges see justice between the parties as the only aim of civil procedure. On the contrary, the aims of public justice, public efficiency and party efficiency constantly influence the way judges manage mega-litigation. In addition, judges take upon themselves responsibility for the efficiency of mega-litigation. The judges interviewed could have described themselves as powerless to push back against resolutely adversarial lawyers. They did not. They could have taken the view that it was for Parliament to bring about procedural reform, while courts got on with the job of doing justice according to law. They did not. The interview data, together with other sources relied upon, indicate that judges in mega-litigation can, and do, use procedural techniques to pursue goals beyond justice between the parties. As foreshadowed in chapter two, the aims of justice and efficiency can be complementary. Sections I and II of this chapter identify two ways in which mega-litigation judges improve efficiency without compromising justice at all: procedural innovation and active case management. While these are important ways of giving effect to the multiple aims of civil procedure, they do not eliminate all instances of tension between those aims; they leave substantial scope for the application of the judge’s own intuitive judgment. This judgment, which is described here as ‘expert intuition’, emerges as a crucial tool for reconciling the tension between justice and efficiency in mega-litigation.

178  Justice and Efficiency in Mega-Litigation

I. Innovation One of the answers to the question of how judges reconcile the aims of justice and efficiency in mega-litigation has already become apparent in the previous two chapters. Chapter nine highlighted the creativity that is characteristic of the mega-litigation judge: a constant quest for new, improved procedural techniques. In chapter ten, many examples of procedural innovation in mega-litigation, both at the system-wide level and by individual judges, were discussed. These illustrated experimentation with innovations such as targeted approaches to discovery; division of cases into separate issues; streamlined expert evidence; and the use of technology. These efforts appear to be driven by the conviction that there are ways of making procedure both more efficient and more conducive to doing justice between the parties. Developments regarding expert evidence, for instance, make the evidence more useful to the court and also take up less court time. Procedural innovation has enabled judges to improve both efficiency and justice in mega-litigation. Is anything lost as a result of innovation? The compromise seems to be that the parties lose the right to control the litigation. As discussed in chapters six, seven and eight, this is not unique to mega-litigation. The shift in responsibility for the progress of litigation from the parties to the court is characteristic of the case management era, albeit more evident in mega-litigation than in litigation of lesser magnitude. Arguably, this is not a loss but rather a progression in the way we think about the purpose of civil procedure. If, as argued throughout this book, procedure serves the aims of efficiency (for both the parties and the public) and public justice, as well as justice between the parties, then it is appropriate for the court to assume greater control over procedure in order to advance those aims.

II.  Focus on the Real Issues As well as innovating, judges can seek to achieve both justice and efficiency in mega-litigation by ensuring that the real issues in dispute are identified early. As explained in chapter nine, assisting parties to identify and narrow the issues is one of the most important tasks of the case managing judge in mega-litigation. Focusing on the real issues in dispute prevents waste. Participants said they tried to stop the parties spending their time, and the court’s time, on irrelevant issues or unhelpful procedures. It is worth setting out a selection of the strikingly similar and emphatic ways in which participants expressed this point: In a lot of cases, doing justice actually means sorting out what really is important and what isn’t. And, if necessary, cutting away stuff that isn’t important.1



1 Sir

Richard Aikens interview.

Focus on the Real Issues  179 It’s the role of the judge, in my view, to try and make courts repositories of accessible justice according to law. That’s what we should do. And that means, to put it bluntly, getting rid of all the rubbish and getting sharp focus on issues.2 What you need to do is identify the issues as early as possible. When you’ve don’t that, you can eliminate some issues because the judge is in a position to question the parties as to whether they really are live.3 ‘Now that I’ve seen your 200 page statement of claim and your 90 page defence, what are the real issues? … Cut to the chase, what are the real issues?’4 [In mega-litigation], even though issues are huge to begin with, as time goes by the thinking becomes more and more refined, and huge slabs of those cases are often consigned to the dustbin. … Murray Gleeson described the role of the modern judge as 90% garbage disposal, which is true.5 [Judges in a docket system] will all have had experience in pointing out at an early stage of litigation, in one way or another to a party, ‘this is rubbish’.6 You should regard it rather like an onion. … With big complex cases … you have a process of peeling the onion, bits at a time, until it’s reduced to a better size.7 There are lots of ways in which a judge can … manage cases by reducing their length. They cannot reduce their legal complexity … but they can get rid of unnecessary evidence and get rid of hopeless legal argument.8 [In mega-litigation] there is a real need to focus on the questions that matter – greater than there is in a normal case.9 People can be persuaded to give up useless parts of the case.10 Mega-litigation will go on too long because the parties will indulge themselves in factual disputes with tangential relevance to the outcome. One of the skills of the ­mega-litigation judge is saying ‘Sorry, I don’t care about this issue.’11 It’s the issue identification which is absolutely critical.12

This ‘laser sharp identification of the real issues’13 provides a crucial insight into the way in which mega-litigation judges reconcile the demands of justice and efficiency. Focus on the real issues facilitates efficiency techniques of the kind outlined in chapter ten. Discovery becomes more targeted; the range of questions for experts is limited and refined; issues suitable for separate determination can be isolated; the structure of the trial can be built around the real issues; the admission

2 Michael

Black interview. E9 interview. 4 Wayne Martin interview. 5 Participant A6 interview. 6 Participant A16 interview. 7 Participant E7 interview. 8 Ray Finkelstein interview. 9 Participant E2 interview. 10 Participant A8 interview. 11 Participant E4 interview. 12 Participant A5 interview. 13 Michael Black interview. 3 Participant

180  Justice and Efficiency in Mega-Litigation of documentary evidence can be limited to that which is truly relevant. Decisions about whether to place limits on evidence or argument can more readily be made when the judge fully understands the importance of the relevant evidence or ­argument. Parties can be encouraged to dispose of the parts of their case that the judge identifies as ‘rubbish’. Focus on the issues means these efficiencies are achieved without compromising justice. The mega-litigation judges who hold parties strictly to the real issues do not believe they are refusing to consider relevant evidence, or preventing the parties from putting forward arguable issues. Instead, they are ­jettisoning unnecessary material which would not assist the judge to decide the case on its merits. If anything, eliminating the ‘rubbish’ enhances the judge’s ability to do justice in the case. The case is presented in a more focused way, and the truly important issues are agitated in full. The intellectual effort required to absorb and synthesise an overwhelming amount of material is a major challenge for the megalitigation judge.14 One participant spoke of the need to limit pleadings, witness statements, and submissions ‘simply because you get information overload in the judge. You simply can’t absorb it.’15 Another contrasted the task of the judge with that of a solicitor or barrister in mega-litigation: You realised when you became a judge, you just hadn’t got the time. And when you’re a judge doing a big commercial trial, you’re there on your own, you haven’t got a team of juniors and solicitors who can go and find the relevant paragraph in the relevant witness statement or whatever. You’ve got to sort it all out yourself. And you can’t do that if you’ve got such a morass of material to try and cope with.16

An Australian participant was concerned that he might ‘lose sight of ’ an issue in complex litigation: There comes a point at which I think there are just so many complexities that you can’t [keep track of all the issues]. … In a fairly small case you can miss something. In a big case the prospects of missing something are greater. And for all that the computerised transcripts and documents help you recover things, they can’t always help you find the missing piece. And in a smaller case, too, … if you’re reserving your judgment [you can] read or re-read the relevant parts of the evidence. In a six month hearing, it’s not really possible to do that, you just can’t spend the time reading six months of transcript, not to mention the underlying statements and documents and things.17

In his judgment in Bell Group, Owen J also reflected on the difficulty of dealing with every issue in a dispute of these proportions: I am reminded of the tag line to the 1948 film The Naked City: ‘There are eight million stories in the Naked City … this has been one of them’. There are literally hundreds of ‘stories’ (individual issues and disputes) raised within 10,000 or so pages of written

14 See

chapter three at 33. E3 interview. 16 Sir Richard Aikens interview. 17 Robert McDougall interview. 15 Participant

Focus on the Real Issues  181 c­ losing submissions on the subordination issue. I have tried to cover as many of the material issues … as I could identify. Hidden away somewhere in the submissions there might be one or two (or eight million) ‘stories’ that I have missed. I have done my best.18

Clearing away unnecessary material makes the judge’s mental task much more confined. This participant put it succinctly: ‘less issues, less risk of error’.19 The proactive role of the mega-litigation judge in helping the parties to define the issues is open to criticism. Reasonable minds may differ on what are the real issues in a given legal dispute.20 Lawyers may not agree with judges about what are the real issues. The judge may seize upon an issue which the parties’ lawyers do not consider crucial; an issue that lawyers think central might, in the judge’s opinion, be peripheral. Lawyers can sometimes be forgiven for framing the case in terms that are, with hindsight, too wide. A more fundamental question is whether it is appropriate, in an adversarial system, for judges to take a highly active role in defining the issues. As explained in chapter nine, several English participants were cautious about being too interventionist in this respect. Chapter six introduced some critiques of case management, including the argument that close judicial involvement in the pre-trial stages of a case strips judges of the distance and impartiality that are the hallmarks of adversarial justice.21 A response to this criticism is that the process of judicial issue identification described in this book is not one in which judges impose their assessment of the case on the parties. On the contrary, as explained in chapter nine, section IA, the process of issue identification is one of dialogue with the parties. While participants varied in the degree of force with which they expressed their views about the issues, most said they would not prevent a party from arguing an issue, even if the judge thought the argument hopeless. In this respect, the tendency of megalitigation judges towards robust case management was tempered by their acute concern for fairness. Another response to these criticisms is that there has never been a single ideal model for the role of the judge in civil procedure. At some periods in the past, the judicial role has been characterised by the hands off, ‘cuckoo clock’ approach22 which leaves almost every aspect of the progress of litigation in the hands of the parties. But this has not always been the case. As chapters six to eight illustrate, the role has been notably malleable, with a series of reinventions occurring over the past 140 years. The judge’s role in civil procedure evolves to meet the exigencies of the times. The shift in control from parties to judge can be seen as a natural part of this evolution. 18 Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1, 508 [4242]. 19 Participant A5 interview. 20 See ED Elliott, ‘Managerial Judging and the Evolution of Procedure’ (1986) 53 University of Chicago Law Review 306, 316–17. 21 Chapter six, section III, referring in particular to Judith Resnik, ‘Managerial Judges’ (1982) 96 Harvard Law Review 374. 22 See chapter nine at 128.

182  Justice and Efficiency in Mega-Litigation

III.  Resolving the Tension: Expert Intuition Until this point, this chapter has looked at ways of giving effect to both efficiency and justice in mega-litigation. In many (probably most) instances, an apparent conflict between justice and efficiency can be resolved by one of the means identified in sections I and II of this chapter: procedural innovation or sharp focus on the issues. In some instances, however, there will be real tension between the aim of doing justice between the parties, and the other aims of civil procedure – public justice, and efficiency for the parties and the public. This section examines the ways in which this tension is resolved. Part II of this book canvassed some options for reconciling justice and efficiency in civil procedure. We have already seen, in chapter five, participants’ reactions to theoretical approaches to the problem. In short, no theory provided a complete answer; insofar as it purported to do so, the economic approach was unfeasible and the other theories left much room for the exercise of judicial discretion. Might court rules provide a solution? Can questions about the appropriate relationship between justice and efficiency in mega-litigation be answered in rules of general application? As explained in chapter nine, section IC, several interview participants reported that they effectively made their own rules in mega-litigation. For many, the strength of the rules lay in their flexibility, leaving ample room for judges to run cases in the way they thought suitable.23 This means that conflicts between efficiency and justice cannot always be resolved by reference to the specific rules that apply to the dispute. In a difficult case, it is up to the judge to decide where the interests of justice lie. The rules may suggest, but rarely dictate, a particular outcome. Many participants spoke of the importance of ‘overriding objective’ ­provisions.24 But again, the value of these provisions was to give ‘power to your elbow’25 rather than to dictate the answer to procedural questions. An overriding objective does not negate the need for each judge to use intuition and experience in making procedural decisions. This participant captured the point: We use [the overriding objective] all the time, but that also is just an expression of motherhood. And so you use it as a convenient tool to enable you to manage the case efficiently. … But … you can have the best practice notes in the world. If you’ve got a poor judge it’s not going to help. And you can have no practice note at all and if you’ve got a good judge you’ll be all right.26

This brings us to the heart of the matter. There will be procedural questions, in mega-litigation, which neither rules, nor authorities, nor theories, will answer. At most, these sources can identify the relevant factors, help to provide reasons for

23 See

the discussion in chapter nine at 131. discussion in chapter seven at 88–89 and eight at 109–11. 25 Participant E4 interview. 26 Participant A6 interview. 24 See

Resolving the Tension: Expert Intuition  183 decisions, and narrow the range of choices. But sometimes, there remains a gap between the guidance that law and theory can provide, and the decision that must be made. The interview data suggests that, in practice, the gap is filled by each judge’s expert intuition. I have borrowed the term ‘expert intuition’ from the work of the psychologist Daniel Kahneman and scientist Gary Klein.27 Kahneman and Klein use the term to describe the way in which an expert can make a rapid, accurate, apparently miraculous assessment of a complex situation. Expert intuition is at play when an experienced fire-fighter moves away from a section of a burning building that collapses seconds later, or when a chess grand master makes a choice that leads to checkmate seven moves later.28 Kahneman and Klein argue there is nothing miraculous about these decisions. A person with extensive experience and training in a field – an expert – is able to draw on their knowledge of similar situations in order to make an extremely rapid assessment of a new situation. These assessments are intuitive in the sense that they are not based on a conscious reasoning process, but on closer examination they are based on a rational, informed analysis. If asked why they moved away from a dangerous area of a building at a crucial time, the fire-fighter might be able to explain that they perceived visual, aural and temperature cues that their training and experience had taught them to recognise. But at the time of making the decision, the fire-fighter may not consciously have gone through this reasoning process, or even identified the relevant cues as the prompts to move. At the time, the fire-fighter just knew that it was time to move. This is not, of course, a book about psychology, and the term ‘expert intuition’ is used here in a slightly different sense than that used by Kahneman and Klein. Their concept of expert intuition operates in situations in which there is an external standard by which to measure the correctness of an outcome. We know the firefighter made the right decision because part of the building collapsed immediately after the fire-fighter vacated it. We know the grand master made the right decision because the grand master won the game. The term ‘expert intuition’ is used here in the context of discretionary procedural decision-making. There is no objective standard for determining whether such a decision was correct. Some decisions will be overturned on appeal, but an appeal court will only interfere with a discretionary procedural ruling in exceptional circumstances. There is a wide margin for the exercise of discretion. Within that margin, there may be several different decisions that are equally correct, or that different persons may consider correct. Despite this, the process by which a judge arrives at a procedural decision resembles that by which the fire-fighter reaches a decision to move from a dangerous part of a fire. When judges make a decision based on expert intuition, they are not simply doing what they feel like; they are bringing to bear a lifetime of

27 See Daniel Kahneman, Thinking, Fast and Slow (Penguin, 2011) ch 22; Daniel Kahneman and Gary Klein, Conditions for Intuitive Expertise: A Failure to Disagree (2009) 64 American Psychologist 515. 28 Kahneman provides these examples in Thinking, Fast and Slow (ibid) 236–39.

184  Justice and Efficiency in Mega-Litigation experience and education in legal practice. Such a decision is not uninformed or arbitrary. So, for example, if judges in mega-litigation have to decide whether to allow discovery of a certain category of documents, they are likely to take into account their experience of discovery as a solicitor and counsel; their understanding of the usual cost and time associated with discovery; the relevance of the documents to the case, based on a nuanced understanding of the issues; and the likelihood, as evidenced by their experience of discovery in hundreds of cases, that this category of documents may contain a ‘smoking gun’. Judges may not go through a conscious process of working through each of these factors; instead, they will be able to make a rapid assessment, drawing on decades of expertise. The phrase ‘expert intuition’ is intended to convey something more than gut feeling. When I began this study, I did not expect that expert intuition would provide the answer to its central question. This was very much a theme that emerged organically from the interviews, with participants repeatedly volunteering descriptions of their decision-making processes that emphasised intuition rather than rules or principles. The descriptions were very consistent across Australian and English interview participants; I did not detect any difference between the two countries in this respect. Many interview participants spoke about the role of expert intuition in procedural decision-making in mega-litigation. Several stated that competing procedural objectives could be reconciled by the exercise of ‘judgment’.29 Peter McClellan, when asked how he determined whether parties were getting a proper hearing, replied: ‘Gotta get a sense. You’ve got to get a sense of it.’ David Harper spoke about the role of intuition in making procedural decisions when the interests of justice and efficiency came into conflict: You just do the best you can, and cross your fingers and hope that the best turns out to be, in the end, the correct decision. But you know that you won’t always get it right. … You can’t really draw on principles because there’s no way that you can weigh two quite different sets of considerations. … You have to try and compare that which can’t be compared. And since that’s impossible by definition and impossible in fact, the best you can do is take an educated guess.

Another participant, explaining why Posner’s economic analysis30 did not reflect the reality of judging, said: It comes back to the judgment point. And I suppose the way I think is not in percentages or markups, it’s much more to do with a sort of instinctive reconciling of competing goals or ambitions.31



29 Participant

A16, Participant E1, Participant E7 and Participant E11 interviews. chapter five, section II. 31 Participant E11 interview. 30 See

Resolving the Tension: Expert Intuition  185 Some participants described a link between a judge’s experience (as a lawyer or a judge, or both) and the formation of expert judgments: It’s reaching the balance between cost and a minimum requirement of fairness. [How do you do that?] Well, one would hope that experience teaches you to do it intuitively.32 I think there is something about having been a lawyer dealing with large cases and a judge trying them which gives you an instinctive assessment of what’s appropriate in the particular case.33 You have to make sure that the case finishes within reasonable parameters but you also have to make sure the parties feel they’re getting a proper hearing. So there’s a balance … And that comes with effort and experience.34 In the end, that’s a judgment that you arrive at: what’s proportionate in any given sense. There’s no science to it, is there? But it’s based on experience and trying to arrive at some sort of compromise between what the parties think is appropriate as well.35 You can’t make hard and fast rules about these things. The decision you make on such interlocutory issues as whether or not to allow an amendment or whether or not to permit the parties to have expert evidence on a particular topic, whether there should be discovery of a particular class of document even though that might be a very large class – all that is something that requires your experience and therefore your judgment to determine. It’s not cut and dried.36

The remarks quoted above confirm a point made in chapter nine:37 the way in which a judge handles mega-litigation is affected by the judge’s experience; experience informs expert intuition. In contrast, the participant quoted below linked expert intuition to the judge’s innate moral compass: A huge amount of this is instinct. … One knows when something is right and when it is wrong. … I was taught that in general terms from an ethical standpoint, if something is not right, you will know just by the fact that your instinct will tell you ‘this can’t be right’.38

For these participants, the resolution of complex procedural disputes involving competing interests and objectives is driven, not by rules or theories, but by expert intuition. The position was captured by Michael Black: We can perceive a dynamic. Imagine a blackboard: there’s cost up here, delay down there (bearing in mind the adage that justice delayed is justice denied), access to the courts over there, there’s money just here, and … so we look for that point of balance or equilibrium between all these elements where there is indeed access to justice. It may not be ‘perfect justice’ but it is clearly recognisable as substantial and accessible justice



32 Participant

A4 interview. E12 interview. 34 Participant A6 interview. 35 Participant E11 interview. 36 Sir Richard Aikens interview. 37 At 137–40. 38 Participant A6 interview. 33 Participant

186  Justice and Efficiency in Mega-Litigation according to law. We might also imagine a large sheet of paper with lots of pull points on it. Somewhere in the middle there is an area of equilibrium or balance. And if it’s in the area of equilibrium or balance which you can recognise as providing substantial justice according to law, then that’s where you should be.

According to this interview participant, the task of a judge, when making a procedural decision, is to ensure that the decision falls, figuratively, in the circle at the middle of the paper. Exactly where the decision falls, within that circle, is a matter for the judge’s expert intuition.

IV.  In Defence of Expert Intuition The existence of expert intuition will not come as a shock to most lawyers or judges; there is extensive literature on the place of intuition in judicial decision-making.39 In a departure from his economic analysis of law, Judge Richard Posner explains: Intuition plays a major role in judicial as in most decision making. The faculty of ­intuition that enables a judge, a businessman, or an army commander to make a quick judgment without a conscious weighting and comparison of the pros and cons of the possible courses of action is best understood as a capability for reaching down into a subconscious repository of knowledge acquired from one’s education and particularly one’s experiences.40

What Posner describes is exactly what this book labels ‘expert intuition’. Expert intuition is acknowledged not just in the literature, but also in the case law on appeals from procedural decisions. In both England and Australia, appeal courts are reluctant to interfere with the exercise of a procedural discretion.41 While a member of the New South Wales Court of Appeal, Kirby P explained that this deference recognised the variety of the personalities and dispositions of those who constitute the judiciary. Some judicial officers are, by personality and disposition, more inclined to intervene in proceedings than others. The appearance of justice and fair procedures does not impose a monochrome uniformity upon judicial conduct such that only one style of conducting proceedings is permitted.42 39 See, eg, Judge Joseph C Hutcheson, Jr, ‘The Judgment Intuitive: The Function of the “Hunch”, in Judicial Decision’ (1929) 14 Cornell Law Quarterly 274; Justice Benjamin Cardozo, ‘The Paradoxes of Legal Science’ in Selected Writings of Benjamin Nathan Cardozo (Fallon, 1947) 252. 40 Judge Richard A Posner, How Judges Think (Harvard University Press, 2008) 107 (citations omitted) interview. 41 Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427, [33] (Lawrence Collins LJ); BPP Holdings Ltd v Revenue and Customs Commissioners [2017] UKSC 55, [33] (Lord Neuberger); Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627 (Kitto J); Squire v Rogers (1979) 39 FLR 106, 113–14 (Deane J); Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379, 386–87 (Gummow J), 391 (French J). 42 Council of the Municipality of Burwood v Harvey (Unreported, NSWCA, Kirby P, Mahoney and Cole JJA, 3 April 1995), 8.

In Defence of Expert Intuition  187 There are some obvious downsides to expert intuition. It can leave judges free to take a leisurely approach to managing mega-litigation. A judge’s expert intuition might tell them to leave no stone unturned; to give the parties every opportunity to present their case as they see fit. As a solution to the problem of inefficiency in mega-litigation, then, expert intuition – like the other solutions offered in this chapter – depends for its efficacy upon the commitment and personality of individual judges. More fundamentally, reliance on expert intuition raises the risk of arbitrary, idiosyncratic decision-making. This risk is a persistent theme of critiques (particularly by American scholars) of case management.43 Recent insights from the field of cognitive science confirm the risk. Judges, of course, are human. Empirical work has confirmed that judges, like other humans, are subject to unconscious bias.44 Nicole E Negowetti explains: Cognitive science has revealed that many of our patterns of acting and thinking are not governed by reason, but rather are ingrained, unconscious, or triggered by our autonomic nervous system. Decisions based on what we believe to be careful, neutral, and logical reasoning, may actually be guided by unexamined and often unseen frameworks of thinking.45

One of the most insidious features of unconscious bias is that it is genuinely unconscious: even when people are aware of the existence of cognitive biases in others, they retain a ‘blind spot’ for those biases in themselves.46 There are ways of ameliorating the effects of unconscious bias. Legal training can reduce these effects.47 Chris Guthrie, Jeffrey J Rachlinski and Andrew J

43 See, eg, Robert G Bone, ‘Making Effective Rules: The Need for Procedure Theory’ (2008) 61 ­Oklahoma Law Review 319, 326; Resnik (n 21) 380; Jay Tidmarsh, ‘Pound’s Century, and Ours’ (2006) 81 Notre Dame Law Review 513, 559. 44 See, eg, Chris Guthrie, Jeffrey J Rachlinski and Andrew J Wistrich, ‘Inside the Judicial Mind’ (2001) 86 Cornell Law Review 777; Chris Guthrie, Jeffrey J Rachlinski and Andrew J Wistrich, ‘Blinking on the Bench: How Judges Decide Cases’ (2007) 93 Cornell Law Review 1; Pat K Chew and Robert E Kelley, ‘Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases’ (2009) 86 Washington University Law Review 1117; For a discussion of how these biases affect judicial decisionmaking, see Jeffrey J Rachlinski, ‘Heuristics and Biases in the Courts: Ignorance or Adaptation? (2000) 79 Oregon Law Review 61. 45 Nicole E Negowetti, ‘Judicial Decisionmaking, Empathy, and the Limits of Perception’ (2014) 47 Akron Law Review 693, 694. 46 Emily Pronin, Daniel Y Lin and Lee Ross, ‘The Bias Blind Spot: Perceptions of Bias in Self Versus Others’ (2002) 28 Personality and Social Psychology Bulletin 369; Emily Pronin, Thomas Gilovich and Lee Ross, ‘Objectivity in the Eye of the Beholder: Divergent Perceptions of Bias in Self Versus Others’ (2004) 111 Psychological Review 781; Joyce Ehrlinger, Thomas Gilovich and Lee Ross, ‘Peering into the Bias Blind Spot: People’s Assessments of Bias in Themselves and Others’ (2005) 31 Personality and Social Psychology Bulletin 680. 47 Darrin R Lehman, Richard O Lempert and Richard E Nisbett, ‘The Effects of Graduate T ­ raining on Reasoning: Formal Discipline and Thinking About Everyday-Life Events’ (1988) 43 American ­Psychologist 431; Russell Korobkin and Chris Guthrie, ‘Psychology, Economics, and Settlement: A New Look at the Role of the Lawyer’ (1997) 76 Texas Law Review 77; cf Craig R Fox and Richard Birke, ‘Forecasting Trial Outcomes: Lawyers Assign Higher Probability to Possibilities That Are Described in Greater Detail’ (2002) 26 Law and Human Behavior 159.

188  Justice and Efficiency in Mega-Litigation Wistrich suggest judges ought to minimise the number of ‘spur-of-the-moment’ decisions they make and should provide written reasons for rulings more often.48 These suggestions would be difficult to accommodate within the role of the mega-litigation judge described in this book. As we have seen, management of mega-litigation involves hundreds of decisions made rapidly, even instantaneously. Slowing this process down to allow for careful deliberation and the preparation of written reasons would create catastrophic deficits on the ‘efficiency’ side of the ledger. More promising is the recommendation that judges receive training in, for example, statistics and scientific reasoning to alert them to possible inappropriate reliance on intuition.49 One response to the danger of arbitrariness is that, while discretion in procedural decision-making may be wide, it is not unbounded. Judges in mega-litigation do not simply do what they feel; they are guided by rules, authorities, principles and, ultimately, limitations drawn from the Human Rights Act 1998 (in England) and the Constitution (in Australia). Court rules and case law are available to provide guidance to judges when making procedural decisions. Furthermore, to the extent that procedural decisions are based on intuition, as emphasised above, what is in question is expert intuition. This intuition is informed by a lifetime of experience and education; not by the length of the judge’s foot. The judge in mega-litigation draws on a ‘store of structured knowledge’50 rather than – or perhaps as well as – an emotional reaction. Linda L Berger argues that intuition can have a positive influence when judges are engaged in problem solving (that is, ‘resolving more-complex questions by choosing a workable and effective option’ from a choice of several possible paths)51 rather than judgments (‘yes-or-no votes … on one-dimensional questions’).52 While the use of intuition in making judgments can result in inappropriate bias, intuition in problem-solving is more likely to open up a range of useful possibilities: By suggesting and inviting different ways of seeing, intuition helps decisionmakers recognize both parallels and alternatives. Rather than misleading decisionmakers, intuition in these circumstances often leads to workable and effective decisions.53

Berger focuses on the use of intuition by appellate judges in developing the substantive law. I argue that her insights are equally applicable to procedural decision-making. Procedural decision-making is precisely the sort of situation in which, on Berger’s reasoning, expert intuition can lead to better results. This is because judges make procedural decisions regularly and frequently, and receive

48 Guthrie, Rachlinski and Wistrich ‘Blinking on the Bench’ (n 44) 36. 49 Ibid 38. 50 Philip E Ross, ‘The Expert Mind’ (2006) Scientific American 64, 67. 51 Linda L Berger, ‘A Revised View of the Judicial Hunch’ (2013) 10 Legal Communication and Rhetoric: JALWD 1, 6. 52 Ibid 6. 53 Ibid 38.

Conclusion  189 ‘prompt, accurate and consistent feedback’ on the success of those decisions.54 It quickly becomes clear if a decision that was meant to save time actually increases the work for the parties, or makes the judge’s task more difficult. Managing a mega-litigation case can be thought of as a gigantic problemsolving exercise. At dozens, probably hundreds, of points along the way, the judge will be called upon to make multifaceted procedural decisions in which the various goals of procedure are implicated. We have seen how judges draw on their experience and intuition to craft bespoke, creative ways of accommodating the needs of the parties and the public, and of achieving both justice and efficiency. Guthrie, Rachlinski and Wistrich point out that it is inevitable that judges will rely on intuition ‘because it is an essential part of how the human brain f­unctions’.55 Intuition is only dangerous when it is relied upon ‘when it is inappropriate to do so’.56 Berger’s analysis suggests that the resolution of conflicts between justice and efficiency in mega-litigation, bounded in the way outlined above, may be appropriate occasions for the exercise of expert intuition. Finally, there is arguably no realistic alternative to the ad hoc balancing approach and the ultimate reliance on intuition. The examination, in this book, of the various theoretical, legislative and doctrinal responses to the problem of justice and efficiency in civil procedure revealed that virtually all of these responses leave the individual judge with a wide discretionary margin. Chapters six to eight showed how movements towards providing a normative direction to guide the exercise of that discretion have triggered reactions in different directions. The preJudicature Acts emphasis on rules-for-the-sake-of-rules gave way to the generosity of the ‘complete justice’ era, which in turn led to the rise of efficiency-driven case management. The fact that procedural decision-making is not governed by a consistent normative principle may indicate that judges, scholars and lawmakers have not yet hit upon a satisfactory normative basis for procedural law. The reason for this, it seems, lies in the nature of procedural decision-making. Civil procedure is pragmatic. It has multiple, sometimes competing, objectives. It involves taking account of not only legal rules, but also resource pressures; practical considerations about the ongoing conduct of the case; and, in the case of mega-litigation, the need to maintain harmonious relationships between judge, lawyers and parties over a period of years. Perhaps there is no normative principle capable of capturing this intensely practical and human task.

V. Conclusion This chapter has answered the question at the heart of this book: how do judges in mega-litigation reconcile the demands of justice and efficiency?

54 Ibid

20, referring to Kahneman and Klein (n 27) 520. Rachlinski and Wistrich, ‘Blinking on the Bench’ (n 44) 5. 56 Ibid 5. 55 Guthrie,

190  Justice and Efficiency in Mega-Litigation The first two answers given to this question involve the mega-litigation judge seeking to give effect to both justice and efficiency by seeking innovative ways of proceeding and by using active case management to ensure a sharp focus on the issues. This provides an insight into the role of the mega-litigation judge. In this book, the mega-litigation judge has emerged as a non-traditional figure: imaginative, innovative, proactive, casting off the formal trappings of procedure. Two pillars of the adversarial system – party control, and its counterpart the passive judge – have little place in the management of mega-litigation. But perhaps the role of the mega-litigation judge is not as radical as it may seem. This chapter has shown that, while mega-litigation judges accept that efficiency is imperative, at heart their approach is directed towards something that has always been the role of the judge: doing justice in each case. To fulfil this role, mega-litigation judges have found it necessary to change the way they run cases, and to reject some long-held principles of civil procedure. But as seen in earlier chapters, civil procedure has been constantly required to adapt to new circumstances since at least the 1870s. There is nothing novel in courts adapting civil procedure to changing circumstances. In one sense, despite all their creativity and innovation, mega-litigation judges may be doing something deeply traditional: seeking to do justice according to law, following a fair procedure. What has changed is that in mega-litigation – as in the civil justice system generally – judges are now seeking to achieve additional aims, including efficiency for the parties and the public, and justice from the public point of view. Sometimes, these aims will be in harmony: innovation and focus on the issues will serve the various ends of civil procedure. At other times, however, a conflict between these aims may arise. In such cases, the decision is entrusted to the expert intuition of the individual judge. That, I have argued in this book, is not necessarily a bad thing.

12 Conclusions This book has offered three answers to the question: how do English and Australian judges reconcile the demands of justice and efficiency in megalitigation? Two of these three answers rest on the idea that justice and efficiency are not mutually exclusive. The first answer is that mega-litigation judges use innovation to further the ends of both efficiency and justice. The second is that, by using active case management to focus on the real issues in dispute, mega-litigation judges seek to improve efficiency without compromising justice between the parties. To understand these conclusions, it is important to keep in mind the concept of ‘justice between the parties’ used in this book, as giving effect to the substantive law and providing a fair hearing. This is not the same as giving the parties exactly what they want. The principle of party control of proceedings has consistently been rejected since the rise of case management. By focusing on the real issues and seeking new ways of proceeding, judges may be denying parties the opportunity to present their case as they see fit, but it does not follow that this compromises justice between the parties. What happens when, despite hands-on case management and procedural ­innovation, there remains a conflict between justice and efficiency? Is there a theory, a rule or a principle that can resolve this conflict? The theory, rules and principle considered in Part II of this book only go so far. They all leave a substantial gap for the exercise of judicial discretion. It is in this gap that the most difficult questions about the relationship between justice and efficiency arise. This gap is filled by each judge’s expert intuition. This is the third answer presented to the question asked in this book.

I.  England and Australia: Similar but Different This book has compared the management of mega-litigation in England and Australia. The two countries share a common procedural heritage, with Australia drawing its court system and legal traditions from England. In the late twentieth century, the procedural paths of the two countries diverged, but ­ultimately ended up in a similar place: case management is now the norm. The interviews for this book revealed many similarities in judges’ general approach to mega-litigation. In both countries, active case management and

192  Conclusions focus on the issues was crucial, as was flexibility and creativity. Participants in both countries gave similar accounts of the influence of experience and expert intuition on their work in mega-litigation. There was some variation in participants’ use of specific procedural techniques. Notably, several techniques that Australian participants had implemented as ­creative, innovative solutions were accepted as standard practice in England. Part of the reason for this may be the time lag between conducting the Australian interviews (in 2011–2012) and the English interviews (in 2017). But it is also, undoubtedly, the result of the influence of the Commercial Court. The Commercial Court emerged as a distinctive forum that was able to handle mega-litigation efficiently and to a high standard, with the cheerful co-­operation of parties and lawyers. As successful as the Commercial Court has been, its formula is not easily replicable in other jurisdictions. Its procedures have been tailored over more than 100 years to meet the needs of complex litigation. These procedures continue to be adapted to changing needs, with the assistance of the Users Committee. Complex commercial litigation occurs every day, with cases regularly falling into the category of mega-litigation. Its judges were experienced, respected commercial litigators before being appointed. Lawyers who appear in the Commercial Court are the cream of London’s commercial silks. The ­Commercial Court demonstrates the advantages, for both the parties and the public, of a specialised jurisdiction for complex commercial litigation. Few places in the world could attempt to recreate these conditions. In Australia, mega-litigation cases pop up, at intervals, in different courts; sometimes in the commercial centres of the Federal Court, New South Wales or Victoria; sometimes in the smaller jurisdictions such as South Australia or Western Australia. The specialised commercial lists have accumulated a high degree of expertise. However, there is a natural limit to the volume of mega-litigation likely to occur in Australia, due to its geographical location and the relative size of its economy. This limits the opportunity for Australian judges, lawyers and court administrators to develop expertise in mega-litigation.1 It also limits the development of court infrastructure such as technology and large courtrooms to accommodate counsel for many different parties. This is not meant as a criticism of the Australian court system, or to suggest that Australian courts should aim to build up their expertise in mega-litigation. It is simply to point out that mega-litigation will pose particular challenges in a system in which it occurs less frequently. Australian courts deal with thousands civil and criminal cases each year, the vast majority of which are not mega-­litigation. When a mega-litigation case does come along, the research in this book suggests that the court, the parties and the public will be best served by allocating the case to a judge with some experience in complex litigation; and by drawing on resources

1 Particularly if judges follow the example of Austin, Owen and Sackville JJ, all of whom retired prematurely after presiding over mega-litigation trials.

Practical Consequences: Allocation, Education and Recruitment  193 that record the experiences of mega-litigation in other jurisdictions. Perusal of the Commercial Court Guide is not a bad place to start. This book adds to those resources.

II.  Practical Consequences: Allocation, Education and Recruitment A single theme unites my conclusions: the management of mega-litigation is heavily dependent on the skill, experience, personality and commitment of the individual judge. A corollary of this point is that some judges may not be suited to managing mega-litigation.2 As one interview participant put it: Ultimately a lot depends on the individual judge. Some are innately better case managers than others. And to put it colloquially, there are one or two judges you might mess around and there are some judges you wouldn’t think of messing around.3

Some judges may not be willing or able to engage in highly active case management or to craft creative, flexible solutions to procedural challenges. Nor do all judges have extensive experience in complex commercial litigation to inform their expert intuition. There is a risk that, if a mega-litigation matter falls into the hands of such a judge, the matter may become bogged down in inefficiency. This risk has been considered earlier in this book, in the context of random allocation of cases under a docket system. A docket system, which involves one judge managing a case from start to finish, emerged as a key to the effective management of mega-litigation. A criticism of the docket system was the possibility that a case could be allocated to a judge who was not proactive in managing the case. One systemic solution to this problem is to ensure that mega-litigation matters are allocated to judges who have been assessed (by the head of jurisdiction, in consultation with the judges themselves) to have the characteristics necessary to manage mega-litigation effectively. Several jurisdictions have a pool of judges who are allocated to manage complex cases, of which London’s Commercial Court is the shining example.4 Allocating such cases to a suitable judge as early as 2 See, eg, Chief Justice James Allsop, ‘Judicial Case Management and the Problem of Costs’ (Speech at the Lord Dyson lecture on ‘The Jackson Reforms to Civil Justice in the UK’, Sydney, 9 September 2014) 15–16 (explaining that case management can be counterproductive in the hands of judges who do not embrace its philosophy). 3 Participant E9 interview. 4 Australian examples include the Federal Court’s corporations list (see Federal Court of Australia, Administrative Notice NSW 2 – Corporations Matters, 15 May 2014; Federal Court of Australia, Administrative Notices QLD 1 – Corporations Matters, 1 August 2011; Federal Court of Australia, Administrative Notice WA 1 – Corporations Matters, 25 September 2009), the Supreme Court of New South Wales’ commercial list (see Supreme Court of New South Wales, Practice Note No SC Eq 3 – Supreme Court Equity Division – Commercial List and Technology and Construction List, 12 October 2008), Supreme Court of Queensland’s Commercial List (see Supreme Court of ­Queensland, Practice Direction Number 21 of 2016: Commercial List), the Supreme Court of South

194  Conclusions possible can ensure that each case is managed as effectively as possible. In this area, heads of jurisdiction may need to take responsibility for identifying and allocating mega-litigation matters appropriately. Judicial education may be helpful for judges who are not naturally suited to managing mega-litigation. No participant reported receiving training for managing mega-litigation, although several referred to informal guidance provided by their colleagues: What you do if you’ve got a tricky point is just talk to someone. It’s an informal support network.5 Word of mouth about what other people have done, yes. But no, in terms of formal training, no. [But informally you have talked to other judges about this?] All the time. Just constantly about procedural issues that arise in cases, things to try to make cases more streamlined and run more smoothly, yes. That would be a constant flow of information.6

Informal support networks of this kind are easier to access in some jurisdictions than others. For a judge of the Commercial Court, or of the commercial lists that exist in Victoria and New South Wales, gold mines of mega-litigation experience can be found in their colleagues. Things are different in a jurisdiction like the Supreme Court of Western Australia, whose judges consume a mixed diet of criminal and civil cases, with mega-litigation being exceptional. Or in the South Australian registry of the Federal Court of Australia, home to just three judges, with mega-litigation a relative rarity. It is more difficult for judges in such jurisdictions to access the flow of information that occurs naturally through corridor conversations in jurisdictions where mega-litigation is more common. Several interview participants said education could improve judges’ ability to manage mega-litigation.7 One participant identified education of judges – and lawyers – as the key to managing mega-litigation more effectively in the future.8 But others had reservations about the efficacy of judicial education in this area. Ray Finkelstein said case management could be taught, ‘up to a point’ but was ultimately ‘very much personality driven’ and that generally speaking, judges tended to resist efforts to educate them.9 An English judge told me that while case management depended largely on personality, ‘judges can also learn. Some of them are unwilling to, to be honest.’10 Another participant said that, while guidelines or

Australia’s special classification list (see Supreme Court Civil Supplementary Rules 2014 (SA) ch 6) and the Supreme Court of Victoria’s Commercial Court (see Supreme Court of Victoria, Practice Note No 10 of 2011 – Commercial Court). 5 Participant E2 interview. 6 Participant A9 interview. 7 Wayne Martin, Participant A5, Participant A15 and Participant E3 interviews. 8 Participant A5 interview. 9 ‘None of them want to be told what to do. So even going to judges’ school or having some teacher teach them, I think there’s a great deal of resentment. They don’t like it’: Ray Finkelstein interview. 10 Participant E3 interview.

Practical Consequences: Allocation, Education and Recruitment  195 education could ‘state at a general level what is required’ in case management, this would not necessarily prepare a judge for what you actually do in the circumstances of a particular case, what precise rules you make and how you deal with the shenanigans that parties and lawyers get up to.11

In any event, education cannot act as a substitute for the attributes of the megalitigation judge identified in chapter nine. The mega-litigation judge recognises that each case is different, that court rules do not set out rigid procedures that must be used in every case, and that the judge must mould procedure to the needs of the case. The interaction between education, flexibility and creativity in mega-­litigation is explained in the introduction to the US Federal Judicial Center’s Manual for Complex Litigation, Fourth: Much complex litigation … will take the judge and counsel into sparsely charted terrain with little guidance on how to respond to pressing needs for effective management. Practices and principles that served in the past may not be adequate, their adaptation may be difficult and controversial, and novel and innovative ways may have to be found. While this Manual for Complex Litigation, Fourth should be helpful within the limits of its mission, it should be viewed as open-ended, and judges are encouraged to be innovative and creative to meet the needs of their cases …12

The value of judicial education, then, lies in making judges aware of the range of techniques at their disposal, and the promulgation of a general approach to managing mega-litigation; not in the prescription of ‘one size fits all’ templates for procedure in mega-litigation. Further, education cannot supply innate characteristics such as creativity; nor can it supply the experience that informs expert intuition. A further practical implication is that judicial recruitment has a large bearing on the management of mega-litigation. Interview participants identified myriad ways in which their experience as lawyers informed their management of mega-litigation.13 This suggests that, in those jurisdictions in which mega-­ litigation is prevalent, priority should be given to appointing judges with extensive experience in complex litigation. Of course, this is easier said than done. A top commercial barrister may, understandably, be reluctant to exchange a thriving practice for the comparatively austere life of a judge. The current ‘crisis’ in recruiting candidates of suitable quality to English courts is well documented.14 But it is certainly possible to attract such lawyers to the bench; the participants in the research on which this book is based include many individuals who came to the bench from glittering commercial practices. Nor should commercial litigation 11 Participant A16 interview. 12 Federal Judicial Center, Manual for Complex Litigation, Fourth (2004) 2–3. 13 See chapter nine, section II and chapter ten, section III. 14 See, eg, House of Lords, Select Committee on the Constitution, Judicial Appointments: Follow-up, 7th report of Session 2017–19 (2017), Ch 3; Judiciary of England and Wales, The Lord Chief Justice’s Report 2017, 10.

196  Conclusions solicitors be overlooked for judicial positions. Interview participants spoke of the value of their experience as solicitors as well as barristers in equipping them with understanding of the motivations of the parties to mega-litigation.

III.  Procedural Reform? Do my conclusions suggest a need for reform of the procedures that are used in mega-litigation? As reported in chapter nine, section IC, several interview participants said that they had abandoned court rules in mega-litigation. Others reported that the existing rules were perfectly adequate to meet the needs of mega-litigation. One participant said: We have all the weapons we need in the existing rules. There is no need for further reform. Dealing with mega-litigation depends on how judges are able to use their case management powers.15

The reaction of a law reformer might be that, if so much depends on the skills, personality and intuition of the individual judge, there is little point wasting time on devising improvements to procedural rules and legislation that will make mega-litigation more efficient. This is not so. On the contrary, it is in mega-­litigation that procedural innovations are most likely to be welcomed. Mega-litigation judges embrace innovation and are likely to be early adopters of any developments in procedural rules. Chapter ten contains many examples of mega-litigation judges pushing the boundaries of existing procedural techniques. My conclusions do not mean there is no point in continual improvement of court procedure. They do mean, however, that rules can only go so far towards achieving efficiency in megalitigation. There comes a point at which there is simply no substitute for the skill and expert intuition of the individual judge.

IV. Conclusion This book set out to discover how English and Australian judges, in megalitigation, reconcile the aims of justice and efficiency. With this question answered, several other questions presented themselves. This book examines mega-­litigation from a judicial perspective. Would a study from the perspective of lawyers yield similar conclusions? Would lawyers – or indeed litigants – agree that mega-­litigation is best managed by transferring control from the parties to the judge? What more can we learn about the application of expert intuition to civil



15 Participant

A8 interview.

Conclusion   197 ­ rocedure? Are similar experiences observable in other centres of mega-litigation p (such as the US and Hong Kong)? As pointed out in this chapter, this book’s conclusions have practical implications. If those responsible for the administration of justice – politicians, government departments and Chief Justices – believe that courts ought to deal with mega-litigation in the way described in this book, then close attention needs to be paid to judicial appointments and education. But ultimately, there is no guarantee that every case of mega-litigation will be handled by an active, flexible, creative and fair judge of the kind described in chapter nine. There remains the risk that, in the wrong hands, mega-litigation will become a massive burden on an individual judge, on the resources of the parties, on other users of the justice system, and on taxpayers. Like any task entrusted to human hands, the management of mega-litigation is at once vulnerable to human frailty, and fortified by human ingenuity and good sense.

APPENDIX A: QUALITATIVE RESEARCH METHODOLOGY This book draws on qualitative interviews with 28 judges who have been involved in mega-litigation. The decision to incorporate qualitative research in this project was driven by a belief that available documents – such as judgments and speeches – did not fully capture the complexity of the task of reconciling justice and efficiency in mega-litigation. This is, in part, because this task tends to be one which judges deal with in the course of deciding substantive issues of law or particular procedural disputes. While engaged in such tasks, it is understandably relatively rare for judges to pause and reflect, explicitly, on the precise relationship between the different aims of civil procedure. I wanted to ask judges about the deeper philosophies underlying their approach to managing mega-litigation. My methodology is based on an ontological assumption that the role of a megalitigation judge depends heavily on the subjective understanding of the people who hold that role. This appendix sets out the methodology used to conduct the interviews and analyse the data.

I.  Stages of the Research I conducted the interviews in two stages. The interviews with Australian judges formed part of my doctoral research at the University of Adelaide, taking place in 2012 and 2013. The interviews with English judges occurred in 2017. For both stages of the research, I obtained human research ethics approval from the University of Adelaide’s Human Research Ethics Committee. For the English interviews, I obtained permission from the Judicial Office to interview High Court judges.

II.  Selection of Interview Participants Potential interview participants were selected from among three groups. The first was those judges who had presided over trials of mega-litigation. The second was those who had managed mega-litigation in its pre-trial stages. This group included judges who had presided over mega-litigation that settled prior to, or during trial;

Selection of Interview Participants  199 and judges in jurisdictions in which complex commercial litigation was frequently conducted. The third group was heads of jurisdictions in which mega-litigation had taken place. Members of this group were selected for their insights into the effect of mega-litigation on the overall work of the court. These groupings proved to be a useful basis for selecting participants. Once participants were selected, however, it became unhelpful to maintain divisions between the groups, because most participants fitted into more than one group. For instance, only two participants were heads of jurisdiction who had not presided over mega-litigation, and very few participants fell within the second, but not the first, group (that is, the participant had case-managed mega-litigation prior to trial but had not presided over a mega-litigation trial). Therefore, the distinction between the groups was largely abandoned at the stage of interview design and was not carried through into the analysis of the data. There is one exception to this position: heads of jurisdiction were asked about the effect of mega-litigation on the overall work of the court. Two strategies were used to identify potential participants. The first was to peruse published judgments and media reports on mega-litigation. The second was to approach judges and lawyers in various Australian jurisdictions to ask them to suggest potential participants who might meet the criteria; a variation on ‘snowball sampling’.1 The aim of my study was not to obtain a statistically representative data set from which generalizations could be drawn with confidence; instead it was to develop deep insights into the world of the mega-litigation judge. Typically, qualitative research results in findings which are representative in the sense of capturing the range or variation in a phenomenon, but not in the sense of allowing the estimation of the distribution of the phenomenon in the population as a whole.2

Accordingly, I used purposeful sampling3 to facilitate ‘detailed exploration and understanding of the central themes and puzzles’4 I wished to study. Michael Patton explains: The logic and power of purposeful sampling lie in selecting information-rich cases for study in depth. Information-rich cases are those from which one can learn a great

1 See Jane Ritchie, Jane Lewis and Gillian Elam, ‘Designing and Selecting Samples’ in Jane Ritchie and Jane Lewis (eds), Qualitative Research Practice (Sage Publications, 2003) 77, 94. In conventional snowball sampling, suggestions are requested after a participant has been interviewed. In my study, suggestions were requested before the interview and, sometimes, from people who did not fall within the groups of potential participants. 2 Lisa Webley, ‘Qualitative Approaches to Empirical Legal Research’ in Peter Cane and Herbert M Kritzer (eds), The Oxford Handbook of Empirical Legal Research (Oxford University Press, 2010) 926, 934. 3 Michael Quinn Patton, Qualitative Research and Evaluation Methods (Sage Publications, 3rd edn, 2002) 230. 4 Ritchie, Lewis and Elam (n 1) 78.

200  Appendix A deal about issues of central importance to the purpose of the inquiry … ­Studying information-rich cases yields insights and in-depth understanding rather than ­ empirical generalizations.5

By selecting participants based on their experiences with mega-litigation, I ensured I was working with information-rich cases that would yield the data of central importance to my inquiry. I am confident that the sample size (n=28) was appropriate for this project. As explained above, the rigour of the study did not depend on a sample size that would facilitate statistically representative results; it depended on the richness of the cases selected. Towards the end of the interviews, I had reached a level of ‘saturation’; that is, new interviews were no longer yielding significant new insights. Finally, the pool of potential participants was small. Australian participants included current or former judges of the Federal Court and the Supreme Courts of New South Wales, South Australia, Victoria and ­Western Australia. The English participants were all current or former judges of the High Court of Justice. Some interview participants had been elevated to higher courts by the time of the interview, or after it had taken place. In many respects, the participants were not a diverse group. The selection criteria dictated that all participants were current, or retired, Australian or English judges. This meant the education, background and socio-economic status of participants were fairly homogeneous. Only six participants were women; a reflection of the low number of women in the pool of potential participants.

III.  Recruitment of Interview Participants I obtained the contact details of potential participants publicly available sources. Those participants who were current judges were contacted through their c­ hambers or the court registry. Retired judges generally maintained a public p ­ resence, as practising lawyers or through Universities. Participants were contacted either by email or letter. They were provided with an Information Sheet containing information on the research project and the interviews; a consent form; and contact details to use if they wished to make a complaint about the project. Response rates were notably different for Australian and English judges. I approached 19 Australian judges, of whom 17 agreed to participate. It was not possible to arrange a mutually convenient time to interview one of the potential participants, leaving a total of 16 Australian participants: an outstandingly high response rate. In contrast, I approached 27 English judges, of whom only eight



5 Patton

(n 3) 230 (emphasis in original).

Development of Interview Topics  201 agreed to participate in an interview. I arranged an additional four interviews through ‘passive snowballing’.6 Several factors likely influenced this difference in response rates. My greater familiarity with the Australian litigation scene allowed me to be more selective in approaching potential participants who fitted the selection criteria well. In England, I cast a wider net, resulting in several invitees declining to participate because they did not think they had sufficient experience in mega-litigation. Because the Australian interviews formed part of my PhD research, each invitation included reference to my PhD supervisors, Professor John Williams and the Honourable David Bleby QC. The attachment of these highly respected individuals to the project may have made the invitation more attractive to Australian participants. By contrast, invitations to English participants were sent out under my name alone. Finally – admittedly anecdotally – my conversations with academics in both countries suggest judicial involvement in academic research may be a more common activity in Australia than in England.

IV.  Development of Interview Topics The interviews were semi-structured. Several predetermined topics were covered in each interview, and certain key questions were put to most participants, but there was no standardized order of questions, nor was the wording of questions determined in advance. The aim was to create a conversational, open-ended yet focussed interview, combining ‘structure with flexibility’.7 The semi-structured format allowed for individual topics to be explored in depth, either because the participant had particular experiences or perspectives relevant to that topic, or because it arose in the course of the interview. It also allowed for links between different topics to be explored freely, without adhering to a rigid template of questions. Developing the interview topics was an iterative process. Initially, I prepared a list of topics and possible questions arising from a literature review on theories of civil procedure,8 and a reading of some judgments and literature on mega-litigation. I refined these topics following conversations with colleagues experienced in qualitative research. As I began to conduct interviews, I gained a greater appreciation of the kind of insights these interviews could yield. At the same time, I began to analyse the interview data and drafted the chapters of this book. This shifted my ideas of how the qualitative research could contribute to 6 That is, in each case one interview participant passed on my contact details to another potential participant, who contacted me indicating their willingness to participate in an interview. 7 Robin Legard, Jill Keegan and Kit Ward, ‘In-depth Interviews’ in Jane Ritchie and Jane Lewis (eds), Qualitative Research Practice (Sage Publications, 2003) 138, 141. 8 An early draft of chapter five of this book.

202  Appendix A the project. Accordingly, I revised the list of topics continually. This practice of constant revision created some inconsistency between the questions asked at the earlier and later interviews. This disadvantage is outweighed by the improved focus and depth that I was able to achieve in later interviews. Most of the changes to the interview topics consisted of abandoning less relevant topics and refining the central topics; therefore, the core of the interviews remained the same throughout.

V.  Interview Procedure All but one of the interviews took place face-to-face, either at the participant’s workplace or at a public venue such as a quiet café. One interview took place by telephone because it was not possible to arrange a face-to-face meeting. Interviews took between 30 minutes and one and a half hours. Prior to the interview, participants were provided with some written information on the interview process. As noted above, at the point of being invited to take part, participants were provided with an Information Sheet outlining the objectives of my research and the format of the interviews. In the week prior to the interview, participants were given an indicative dot-point list of the general topics to be covered. An example of this document (the content varied slightly between participants) is provided as Appendix B to this book. In developing this list, I endeavoured to provide enough detail to give the participant a clear idea of what would be discussed. On the other hand, the list was worded in terms of general topics rather than specific questions, in an effort to maintain the spontaneity of answers given during the interview. Providing the outline of topics in advance proved an effective technique. By the time of the interview, many participants had made the effort to think of specific examples of mega-litigation they had been involved in, to reflect on my broader research questions, and even to discuss these matters with their colleagues and collect relevant documents. The document containing the indicative list of interview topics also contained short summaries of the four theoretical perspectives on procedural law explored in chapter five of this book. These summaries were intended to give participants time to become familiar with the basic theories, so that they could be asked to respond on the theories during the interviews. These summaries appear in Appendix B to this book. I conducted background research on each participant prior to the interview. I ensured I was familiar with the participant’s professional biography, particularly their areas of practice prior to judicial appointment, and the date of their appointment. I familiarised myself with specific cases of mega-litigation with which the participant had been involved, as well as with any of the participant’s publications or speeches on topics such as complex litigation or civil procedure. This preparation enabled me to prioritise certain topics, and formulate specific questions based on the participant’s experiences or publicly expressed views.

Interview Procedure  203 Before the interview began, participants were asked to sign a consent form. The consent form offered participants the choice of partial, complete or no anonymity. The form also asked participants whether they consented to the interview being recorded electronically. All but three participants consented to the recording. For the remaining three interviews, I took handwritten notes during the interview and typed these up as soon as possible after the interview. It is in the nature of semi-structured interviews that every interview is different. Like the development of topics discussed above, the conduct of the interviews was an iterative process. As I gained experience as an interviewer and clarified my ideas about the place of the interviews in the overall project, the structure of the interviews changed. Subject to those caveats, it is possible to provide an outline of the structure of a typical interview. Each interview began with a key question: what is ‘mega-litigation’? This question was important, not only because it orientated the discussion that followed, but because it was one of the research questions I was investigating. For Australian participants, I read out Sackville J’s description of mega-litigation in the C7 case.9 For English participants, I read a description of mega-litigation developed in my Australian research. In both jurisdictions, I then asked participants to respond to the description I had read. Did they think it accurate? Useful? Did they have anything to add? This stage of the interview was often a convenient place to ask another key question: is mega-litigation qualitatively different from other types of litigation? Participants would then be asked to identify mega-litigation cases in which they had been involved, both before and after being appointed to the bench. At this stage, participants sometimes talked about their experiences in detail, raising many of the issues I wished to cover in the interviews. The semi-structured nature of the interviews allowed me to pursue these issues as they were raised. At this stage of the interview, participants were generally asked about the causes of mega-litigation, both generally and in the specific cases they had been involved in. Next, I would ask some open-ended questions about participants’ experience of procedure in mega-litigation – for example, ‘what procedural techniques did you use?’ or ‘what were the challenges of this litigation?’ In this section of the interview, participants might also be asked about specific cases they had been involved in or views they had publicly expressed. The aim was to draw out both specific techniques and general approaches, with examples and reflection. Many of the most significant and unexpected insights in the project emerged from these discussions. In some of the early interviews, participants were explicitly asked about their attitude to justice and efficiency in mega-litigation in a separate section of the interview. However, as the interview process was refined, it became more natural to discuss issues of justice and efficiency in the course of this general discussion about participants’ experience of mega-litigation. This helped to make

9 Seven

Network Ltd v News Ltd [2007] FCA 1062, [1], set out in chapter three at **.

204  Appendix A the link between participants’ experiences and techniques, and their underlying attitudes and philosophies. A key topic to be covered in each interview was the influence of overriding objective provisions and other court rules. Often, the participant raised these topics spontaneously while discussing their experience of procedure in megalitigation. If this did not happen, participants were asked how these rules affected their approach. In the final part of the interview, participants were asked to respond to the short summaries of theoretical perspectives on procedural law which had been provided in advance.10 They were asked whether these theories had any resonance with their own experience of procedure in mega-litigation. On two occasions, this part of the interview was omitted because participants had very limited time available.

VI.  Data Analysis As noted above, all but three interviews were electronically recorded. Extensive contemporaneous notes of the remaining interviews were taken. As soon as possible after each interview, I typed a verbatim transcript from the recording. While I considered using an external transcription service, the confidentiality of the interviews, as well as resourcing issues, made this an inappropriate option. Further, the process of typing the notes made me very familiar with the data and gave me the opportunity to self-critique my interview technique. I then coded the interviews using NVivo software. ‘Codes’ are ‘tags or labels for assigning units of meaning to the descriptive or inferential information compiled during a study’.11 Coding is used to dissect and organise raw data and to identify emerging patterns and themes. Before the interviews began, I developed an index of codes based on my literature review and planned interview questions. When I began to code the interview transcripts, I found many of the codes in this index redundant. Much of the interview data called for new codes which I had not considered before. Accordingly, I constantly revised the codes throughout the project, and regularly re-coded earlier transcripts to ensure that the data was placed within the current coding framework. Miles and Huberman emphasise that revising codes is an inevitable part of qualitative research.12 They explain: the field site emits a continuous stream of leads, mysteries, themes, and contradictions that need to be pursued and that will never fit perfectly into a precoded conceptual frame …13 10 See Appendix B. 11 Matthew B Miles and A Michael Huberman, Qualitative Data Analysis (Sage Publications, 2nd edn, 1994) 56. 12 Ibid 61–62. 13 Ibid 62.

Participant Review and Anonymity  205 I found this an accurate description of my experience of coding interviews. Equally resonant was Miles and Huberman’s observation that coding is a way of forcing you to understand what is still unclear, by putting names on incidents and events, trying to cluster them, communicating with others around some commonly held ideas, and trying out enveloping concepts against another wave of observations and conversations.14

In other words, coding is not merely a means of organising data for easy retrieval; it is a crucial part of the analysis of the data, and can drive the direction of the project. The coding process enabled me to identify themes emerging from the data. I used these themes to structure the chapters of this book. When writing these chapters, I used a large number of direct quotes from the interviews because it was important, given my ontological assumption that the role of the mega-­ litigation judge is influenced by each person’s perspective on the role, to retain the ­participants’ voice.

VII.  Participant Review and Anonymity All participants were given the option of remaining anonymous. It was a condition of the approval of my research by the Judicial Office that all English High Court judges remained anonymous. Nine of the 16 Australian participants and 11 of the 12 English participants elected to remain anonymous. Before submitting the manuscript of this book to the publisher, each participant was provided with a fully anonymised copy of the manuscript, but each participant was told how to identify material from their interview (for example, material attributed to ‘Participant A1’). In accordance with my ethics approval, participants were given the option of withdrawing, amending or anonymising their material. At this stage, several participants requested that the grammar or syntax of quotes be changed. A small number of participants withdrew or amended some ­substantive material. Where participants requested anonymity, every effort has been made to honour that request. Such participants have been allocated a pseudonym consisting of the letter ‘A’ for Australian and ‘E’ for English participants, and a random number (eg ‘Participant A1’ or ‘Participant E6’). I have attempted to omit any details from which the identity of the participant could be ascertained. However, due to the small number of potential participants and the nature of the selection criteria, in some cases the identity of the participant may nonetheless be apparent. This danger was acknowledged in the consent form.



14 Ibid.

206  Appendix A

VIII.  Limitations of Study Some limitations on the study must be acknowledged. Participants were, to a degree, self-selecting. People who agreed to be part of a study on justice and ­efficiency in mega-litigation might tend to be those who already held strong views on these issues. It is possible that the highly active case management style, and the concern for efficiency demonstrated by most participants are not be universal. Different views may be held by those judges who declined to be interviewed. Limits on time, resources, and availability of interview participants restricted the number of interviews that could be conducted interstate. Despite this, as explained earlier, the sample size is appropriate for this study. The reliability of the study depends, of course, on the degree to which ­participants were willing to share their experiences and opinions frankly and openly. In general, participants appeared very frank, often disclosing quite ­sensitive material including reflections on the difficulties of their role and doubts about some of their decisions. This frankness did have its limits. On occasion, participants were reluctant to speak about specific individuals (such as lawyers and other judges) and kept their remarks at a general level. While it is important to bear these limitations in mind, the qualitative research design was sufficiently rigorous to ensure that the outcomes are generally reliable. The interviews became a central component of the book, not only providing data that helped to answer the research questions, but also shaping the way in which I conceptualised those questions.

APPENDIX B: INFORMATION PROVIDED TO INTERVIEW PARTICIPANTS PRIOR TO INTERVIEWS Outline of Topics for Participants Justice and Efficiency in Mega-Litigation The interviews for this project will be semi-structured: there will not be a rigid list of questions, but the topics set out in this document will be covered in most interviews.

The Concept of Mega-Litigation The first part of the interview will consider the concept of ‘mega-litigation’, beginning by asking for comment on the following working definition of ‘mega-litigation’: Civil litigation between well-resourced parties involving many complex factual (and, sometimes, legal) issues, with the stakes usually exceeding £60 million (or very ­significant non-monetary consequences), the trial often (but not necessarily) taking upwards of 50 days, and often involving multiple parties.

Interview participants will be asked whether mega-litigation is qualitatively ­different from other litigation. They will also be asked for their impressions of the factors that cause mega-litigation.

Experience of Mega-Litigation Participants will be asked to reflect on mega-litigation cases with which they have been involved as either the trial or pre-trial stage (or both), as well as any ­experience of mega-litigation as a lawyer. Heads of jurisdiction will be asked about the effect of mega-litigation on the work of the court. They will be asked about the challenges these cases presented, and the techniques they used to deal with these cases.

208  Appendix B

Approach to Procedure in Mega-Litigation This section of the interview will examine the rules, principles and mechanisms that guide each participant’s approach to procedural decisions in mega-litigation. This will typically include discussion of: • • • • •

The overriding objective in CPR 1.1 Other procedural rules, practice directions and guides Methods of defining the issues (such as Statements of Case and Lists of Issues) The Human Rights Act 1998 The relevance of efficiency considerations, and the resolution of any tension between justice and efficiency • The participant’s case management style, including the extent of intervention in the running of the case

Reform of Procedural Law in Mega-Litigation Participants will be asked to comment on ways in which procedural law might become better adapted to the mega-litigation context.

Theoretical Perspectives on Procedural Law In this section of the interview, participants will be asked to respond to four leading academic theories on the aims of procedural law. I wish to investigate the extent to which these theories reflect practice in mega-litigation. Interview participants will be asked to respond to these four theories, brief summaries of which are set out below.

Three Dimensions of Justice1 All systems of procedure exist to do justice. Justice has three dimensions by which it is measured. These are rectitude (or accuracy) of decision; time; and cost (for both the parties and the system). These three dimensions are not entirely complementary and at times they pull in different directions and call for compromises. Compromise, therefore, is an inescapable feature of any system of justice.

1 Paraphrased from Adrian AS Zuckerman, ‘Justice in Crisis: Comparative Dimensions of Civil Procedure’ in Adrian AS Zuckerman (ed), Civil Justice in Crisis (Oxford University Press, 1999) 3.

Theoretical Perspectives on Procedural Law   209 Procedural law should aim to achieve the optimal mix of these three dimensions of justice.

Economic Analysis2 The objective of a procedural system, viewed economically, is to minimize the sum of two types of cost. The first is the costs of erroneous judicial decisions. Suppose the expected cost of a particular type of accident is $100 and the cost to the potential injurer of avoiding it is $90 (the cost of avoidance by the victim, we will assume, is greater than $100). If the potential injurer is subject to either a negligence or a strict liability standard, he will avoid the accident – assuming the standard is administered accurately. But suppose that in 15 percent of the cases in which an accident occurs, the injurer can expect to avoid liability because of erroneous factual determinations by the procedural system. Then the expected cost of the accident to him will fall to $85, and since this is less than the cost of avoidance to him ($90), the accident will not be prevented. The result will be a net social loss of $10 – or will it? We must not ignore the cost of operating the procedural system. Suppose that to reduce the rate of erroneous failures to impose liability from 15 percent to below 10 percent would require an additional investment in procedure of $20 per accident. Then we should tolerate the 15 percent probability of error, because the cost of error ($10) is less than the cost necessary to eliminate it ($20).

Moral Harm3 The violation of a legal right constitutes a special kind of harm, which can be described as ‘moral harm’ suffered by the person whose rights are violated. The general law of a community provides a record of its assessment of the relative importance of moral harm. Litigants have two procedural rights. First, there is a right that the legislature fix civil procedures that correctly assess the risk and importance of moral harm. Secondly, the parties to a particular case are entitled to a consistent evaluation of [moral] harm as compared with the procedures afforded others in different cases. This means that judges making individual procedural decisions must ensure that the decisions are consistent with the community’s own evaluation of moral harm embedded in the law as a whole.



2 Paraphrased 3 Paraphrased

from Richard A Posner, Economic Analysis of Law (Wolters Kluwer, 7th ed, 2007). from Ronald Dworkin, A Matter of Principle (Clarendon Press, 1986).

210  Appendix B

Process Values4 It is possible to evaluate not only the results of a process, but the process, too. The phrase ‘process values’ is used to refer to standards of value by which we may judge a legal process to be good as a process, apart from any ‘good result efficacy’ it may have. A legal process can be good, as a process, in two possible ways, not just one: it can be good not only as a means to good results, but also as a means of implementing or serving process values such as participatory governance, procedural rationality, and humaneness.

4 Paraphrased from Robert S Summers, ‘Evaluating and Improving Legal Processes – A Plea for “Process Values”’ (1974) 60 Cornell Law Review 1.

APPENDIX C: LIST OF INTERVIEW PARTICIPANTS Ten out of 28 interview participants agreed to be named in this research. The remaining 18 chose to remain anonymous. Those who agreed to be named are listed here. Name and title (at time of interview) Sir Richard Aikens

Judicial role at time of interview Retired from judicial office

Previous judicial roles of relevance to the research Judge of the Commercial and Admiralty Courts Judge in Charge of the Commercial Court Court of Appeal Judge

The Honourable Michael Black AC QC

Retired from judicial office

Chief Justice of the Federal Court of Australia

The Honourable Justice David Bleby

Judge of the Supreme Court of South Australia

The Honourable Ray Finkelstein AO QC

Retired from judicial office

Judge of the Federal Court of Australia

The Honourable Justice David Harper

Judge of the Victorian Court of Appeal

Judge of the Supreme Court of Victoria

The Honourable Malcolm Lee QC

Retired from judicial office

Judge of the Federal Court of Australia

The Honourable Chief Justice Wayne Martin

Chief Justice of the Supreme Court of Western Australia

The Honourable Justice Peter McClellan

Chief Judge at Common Law, Supreme Court of New South Wales

The Honourable Justice Robert McDougall

Judge of the Supreme Court of New South Wales

The Honourable Neville Owen

Retired from judicial office

Judge of the Supreme Court of New South Wales

Judge of the Supreme Court of Western Australia

212

INDEX Notes 1. 2.

As in the main text the index uses ‘England’ as shorthand for the jurisdiction ‘England and Wales’. Where judges are named interview participants, all material relating to them including published work is included under ‘interview participants’. The published work and particularly important judgments of judges who are not named interview participants is indexed under the judge’s name.

access to justice: see public justice, access to justice considerations; Woolf Report (1995) (Access to Justice) adversarial system jurisprudence Aon, 113 Jones v NCB, 79 Managing Justice, 108 party-controlled justice and, 78–80, 116, 156, 190 pleadings, effect, 146–7 role of the judge, 79–80, 181 ‘passive, neutral and inactive’, 78–9, 89, 190 structuring the trial, 156–7 tensions caused by, 172–5 Alexander, Larry, 67, 69, 70 Allsop J, James, 193 Andrews, Neil, 93 Armstrong, Nick, 9 assessors, use of, 153 Attrill, Wayne J, 29 Australia and England compared case management cross-examination, time limits, 163–4 discovery/disclosure, 149 documentary evidence, 158–9 enthusiasm for, 83 expert evidence, 165–6 judge-driven vs imposed rules, 117, 175 lists of issues, 124–5, 147 separate determination of issues, 150 sharing the judicial task, 154–5 trial timetables, 156–7 witness statements, 160–1

creativity of judges, 129–30 globalisation, 25–6 hearing time, 21 individualised justice, 29–30 litigation funding, 28–9 mega-litigation as burden or benefit, 42–3, 99 as burden on judge, 33 as distinct from ordinary litigation, 33–5 factors affecting experience with/attitude towards, 191–3 special commercial courts/commercial lists, 101, 104 Bayles, Michael, 58, 63–4, 66 Bell, Evan, 81, 169 Bentham, Jeremy, 3–4, 9–10, 52–3 Berger, Linda L, 188–9 Bone, Robert G, 63, 74, 187 Boniface, Dorne and Michael Legg, 107 Bowen, Lord Cropper v Smith, 77, 78, 113 ‘Law Courts under the Judicature Acts’, 76 ‘Progress in the Administration of Justice During the Victorian Period’, 75 Brennan, Sir Gerard, 12, 83 case management: see also mega-litigation judges, sharing the burden Australian and English experience compared: see Australia and England compared, case management; case management (Australia); case management (England)

214  Index factors giving rise to changing expectations of government, 80 costs and delays of partycontrolled/‘complete justice’, 84 increased litigation, 80 judge’s role, changes, 81 recognition of importance of public justice/public efficiency, 54, 81 historical development, 80–4 mechanisms continuity of management/single judge, 143–5 control of submissions, 168–9 discovery/disclosure, 147–9: see also discovery/disclosure ‘docket’ vs ‘wheel’ systems, 06, 80n41, 145 evidence, presentation of, 159–68, 176: see also evidence, presentation of; evidence, taking on commission expert evidence, 164–8, 176 judicially settled list of issues, 97, 124–6, 136, 139–40, 145–7 List of Common Ground and Issues (England), 146–7 managing relationships, importance/ techniques, 172–5 pleadings, disadvantages of, 146–7 pre-trial stage, 81–2 procedural fairness interface, 132–6 scope for improvement, 196 separate determination of issues, pros and cons, 150–1 structuring the trial, 156–7: see also trial structuring/timetabling as ‘tailoring of procedures’, 80–1, 86, 97, 100, 130, 147–8, 175, 192 technology, 170–2: see also technology variation, 80–1 pros and cons demands on the judge, 22, 33, 83 effect on party control of proceedings, 81, 109–10, 113–14, 158–60, 165, 167, 168–9, 178, 191 imposition of discipline on practitioners, 110, 144 intensive, time-consuming nature, 21–2 as means of ensuring a sharp focus on the real issues, 8, 144, 158–9, 177, 178–9 paucity of evidence, 83

risk to traditional judicial role, 84 speed of resolution vs increased costs, 13, 83 US experience, 82–3 case management (Australia) divided opinion (Sali vs JL Holdings), 105–7 vs Aon/Expense Reduction, 111–14 interview participants’ comments on the effect of JL Holdings/Aon, 114–16 as judge-driven innovation, 104–5, 110–11, 117 jurisprudence Aon, 107, 111–16 Bass v Permanent Trustee Co Ltd, 151 Bell Group, 146 Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd, 107–8 Byron v Southern Star Group Pty Ltd, 83 GSA Industries Pty Ltd v NT Gas Ltd, 83 Idoport, 151 Inamed Development Company v Morton Surgical Pty Ltd, 107–8 JL Holdings, 77, 106–9, 111–16 McLoughlin v Grovers, 151 Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd, 83 Maronis Holdings Ltd v Nippon Credit Australia Ltd, 107 Sali, 83, 105–6 State Pollution Control Commission v Australian Iron & Steel Pty Ltd, 83, 105 United Motors Retail Ltd v Australian Guarantee Corporation Ltd, 105 rejection of case management (JL Holdings), reaction to ‘chilling effect’, 107–8 justice between the parties principle, implementation of, 107–8 Managing Justice (2000), 108, 132 ‘overriding objective’, adoption of, 108–11: see also civil procedure rules (Australian jurisdictions) case management (England) Commercial Court practice, 96 CPP Part 3, 89 economic analysis and, 58 HRA 6 (fair trial) and, 93–4: see also Human Rights Act 1998 (HRA)/ECHR 6

Index  215 jurisprudence Cropper v Smith, 82, 113 Ketteman, 81, 82 Tepko Pty Ltd v Water Board, 151 Tilling v Whiteman, 151 Long Trials Working Party: see Long Trials Working Party reports recommending in date order Evershed Report (1953), 86 Report of the Review Body of the Chancery Division of the High Court (1981), 86 Civil Justice on Trial – A Case for Change (Heilbron and Hodge) (1993), 86 Woolf Report (1995), 86–90: see also Woolf Report (1995) (Access to Justice) Jackson Report (2008), 90–3: see also Jackson Report (2008) (Review of Civil Litigation Costs) Chew, Pat K and Robert E Kelley, 187 Church, Thomas W, 10 civil procedure objectives: see efficiency for the parties; Judicature Acts 1873/1875; justice between the parties; justice–efficiency relationship; public efficiency; public justice civil procedure rules (Australian jurisdictions) (‘overriding objective’ provision), 108–11 Aon, 112–16 fairness and, 108–9, 110 incorporation of the key civil procedure objectives, 108–9, 112–14 interview participants’ comments on, 109–11 practitioners’ responsibilities, 110 proportionality and, 108–9 as reflection of existing practice, 110–11 Civil Procedure Rules (CPR) (1999) (England), 87 r 1.1 (overriding objective: just dealing with cases) case management powers and, 89 incorporation of elements other than dealing ‘justly’, 87 interview participants’ comments on, 87–9 justice between the parties, 87, 89, 91 post-Jackson Report amendment, 91 text, 87

r 1.2(c) (just dealing with cases: proportionality), 87, 88 r 1.2(d) (‘expeditiously and fairly’), 87 r 3.8 (sanctions for non-compliance), 90 r 3.9 (factors for determination of relief from sanctions), 90 r 3.9 (factors for determination of relief from sanctions) (post-Jackson Report amendment), 91–3 difficulties of adjusting to, 93 Mitchell/Denton, 92–3 proportionality, 90–2 r 29.8 (trial timetable requirement), 156 r 31.5 (‘menu option’ disclosure), 147–8 r 32.4 (written witness statements), 160 r 35.15(2) (appointment of assessor), 153 r 35.15(3) (role of assessor), 153 Clarke MR, Anthony, 18, 80, 87, 90, 96 Colman, Anthony, Victor Lyon and Philippa Hopkins, 94, 95, 97, 154 Commercial Court case management in, 88, 92, 95, 96 application of techniques to mega-litigation outside the Commercial Court, 99–100, 192 controlling submissions, 169 cross-examination time limits, 163 discovery/disclosure in, 149 expert evidence in, 157, 165 innovative approach to complex litigation, 5, 94–5, 96 List of Common Ground and Issues, 97, 124–5, 126–7, 146–7 oral hearings, 169 pre-trial conference/judicial role, 165–6 separate determination of issues, 150–1 tailoring of procedures, 86, 97, 100, 175, 192 track allocation, 156 trial timetable, use of, 156 written witness statements, use of, 161 Commercial Court Users Committee, 95, 129–30 establishment (1895), reasons for, 94–5 Financial List, 98 foreign law in, 25–6 foreign litigants, 25–6, 96 judges qualifications, 95 two-judge teams, 154–5 judicature system, place in, 95

216  Index jurisdiction (commercial claims) (CPR r 58.1(2)), 95 Long Trials Working Party: see Long Trials Working Party relations with users/user feedback, 95 Rolls Building, 95, 98–9 technology, use of, 170 commercial litigation commercial lists (Australia), 103–4 non-commercial mega-litigation, distinguishing features financial resources, 35, 36–7, 98–9, 172 ‘high stakes’, classification as, 20, 36 justice–efficiency relationship, 37, 99 specialist courts and procedures (England), 86, 94–9, 100 complete justice, 76–80, 82, 85, 86–7, 89: see also justice between the parties; party-controlled justice constitutional law see due process’ cost-benefit analysis: see economic considerations; justice–efficiency relationship (Posner) (economic cost/benefit analysis) court officers, use of, 151–2 cross-examination, limits on in Australia, 163–4 cross-examination by an examiner, 154 in England, 163 jurisprudence Bell Group, 164 C7, 162 Idoport, 154, 162 Pacific Acceptance Corporation Ltd v Forsyth, 163 justice/fairness and, 66, 164, 175 Darbyshire, Penny, 7, 172 Davies J, GL, 81 Dehn, Conrad, 16 digital communication: see technology discovery/disclosure Australia and England compared, 149 Australian reforms, 148 judicial approaches to discovery, 148–9 in the Commercial Court., 149 CPR r 31.5 (‘menu option’ disclosure), 147–8 Jackson Report reforms, 147–8 judicial role, 149

problems of, 147 Compagnie Financiėre et Commerciale du Pacifique v Peruvian Guano Co, 147 proliferation of documentation key issues, need for limitation to, 148–9 technology’s facilitation of, 149 Down, Craig, 83 due process (Australia): see also fairness federal and State judicial systems distinguished, 102–3 as implied constitutional requirement, 102–3 jurisprudence Bass v Permanent Trustee Co Ltd, 102 Commonwealth v Melbourne Harbour Trust Commissioners, 102–3 Fardon, 103 Harris v Caladine, 102 In Re Judiciary and Navigation Acts, 102–3 Kable, 103 Leeth, 102 Nicholas, 102 Re Nolan; Ex parte Young, 102 North Australian Aboriginal Justice Agency, 103 Polyukhovich, 102 R v Kirby; Ex parte Boilermakers Society of Australia, 102 Re Tracey; Ex parte Ryan, 102 Wainohu, 103 Williamson v Ah On, 102–3 Dworkin, Ronald: see also justice–efficiency relationship (Dworkin) (moral harm) A Matter of Principle, 14, 61 Taking Rights Seriously, 14 economic considerations, cost/benefit analysis, 62: see also justice– efficiency relationship (Posner) (economic cost/benefit analysis) education of judges: see judicial education; mega-litigation judges, personality and experience, experience and education as contribution to understanding of efficiency for the parties definition, 13 importance to the parties, 13

Index  217 Jackson Report, 91–2 overriding objective and CPR 1.1, 87, 89 Federal Court of Australia Act 1976 (Cth), s 37M, 108–9 Woolf Report, 87 Ehrlinger, Joyce, 187 electronic assistance: see technology Elliott, ED, 81, 82, 181 evidence, presentation of cross-examination, limits on, 162–4: see also cross-examination, limits on documentary evidence, control of in Australia, 158–9 in England, 158 focus on key issues, importance, 158–9 interview participants’ comments on, 158–60 justice, impact on, 160 objections to evidence Australian participants’ handling of, 161–2 Bell Group, 162 factors contributing to disproportionate number of, 161 written witness statements Australian practice, 160 Commercial Court practice, 161 CPR r 32.4, 160 interview participants’ comments on, 160–1 pros and cons, 160–1 evidence, taking on commission Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (1970), 154 jurisprudence Bidder v Bridges, 154 Devis v Turnbull, 154 Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd, 154 Idoport, 154 Lord Belmore v Anderson, 154 Moodalay v Morton, 154 Warner v Mosses, 154 as means of reducing burden on megalitigation judges, 154 expert evidence, 164–8 Australian practice, 157, 165 concurrent evidence (‘hot-tubbing’), 166–7 interview participants’ comments on, 167–8

difficulties associated with, 26 hearing as a block after lay evidence, 157 judicial control Commercial Court practice, 157, 165 lawyers’ dislike of, 167, 176 Long Trials Working Party recommendations, 165 expert intuition appeal courts’ respect for, 186 contributing factors education, 183–4, 186, 188, 195 experience, 184–5 innate moral compass, 185 definition, 183 interview participants’ comments on, 184–6 judicial discretion and, 186 jurisprudence Australian Coal and Shale Employees’ Federation, 186 Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd, 186 BPP Holdings, 186 Council of the Municipality of Burwood v Harvey, 186 Squire v Rogers, 186 Walbrook Trustee (Jersey) Ltd v Fattal, 186 justice–efficiency relationship, as key to resolving tensions, 5, 8, 68, 177, 182–6 overriding the rules, 182–3 problem-solving vs binary ‘yes/no’ situations, suitability for, 188–9 risks arbitrary decision-making, 187 judicial antipathy towards case management, 187 unconscious bias, 187–8 risks, protection against constraints on judicial discretion, 188 ‘expert’ intuition, limitation to, 188 legal training, 187–8 written reasons for decisions, 188 fairness: see also due process (Australia) balance with other civil procedure objectives, 4–5, 55–6, 134–6, 175 economic analysis and, 58, 60–1 focus on issues, importance, 136 HRA/ECHR 6 compliance and, 93–4, 133

218  Index individualised justice/judicial discretion and, 29–30 interview participants’ comments on, 132–6 judges’ commitment to, 8, 60–1, 77, 121, 122, 132–6, 141, 175, 181 jurisprudence Angliss Group, 134–5 Applicant VEAL of 2002, 135 Australian Coal and Shale Employees’ Federation, 132 Bell Group, 134 BPP Holdings Ltd v Revenue and Customs Commissioners, 132 Kioa v West, 134–5 National Companies and Securities Commission v News Corporation Ltd, 134–5 Parbery v QNI Metals Pty Ltd, 134 Squire v Rogers, 132 Walbrook Trustee (Jersey) Ltd v Fattal, 132 justice, dependence on, 11, 12, 44, 46, 55–6, 64, 65–6, 190 limits on cross-examination and, 66, 175 overriding objective and CPR 1.2(d), 87 Federal Court of Australia Act 1976 (Cth) s 37M, 108–9, 110 procedural fairness case management and, 132–6 as independent value, 10–11, 64–6, 67–8, 69, 70–2 technology, role, 170–1 Financial List, 98: see also Commercial Court flexibility individualised justice, impact on megalitigation, 29–30 of mega-litigation judges, 5, 8, 121, 130–2, 140, 154, 156–7, 158, 175–6, 197 focus on the real issues: see real issues, definition/need to focus on foreign law in the Commercial Court, 25–6 difficulties associated with, 25–6 Fox, Craig R and Richard Birke, 187 Freckelton, Ian and Hugh Selby, 164 Gava, John, 72–3 Gleeson CJ, AM, 29 globalisation, contribution to megalitigation/legal complexity, 25–6

Goriely, Tamara, Richard Moorhead and Pamela Abrams, 90 Grave, Damian, Ken Adams and Jason Betts, 28 Gravelle, Hugh, 16 Guthrie, Chris, Jeffrey J Rachlinski and Andrew J Wistrich, 187–8, 189 Hayne J, Kenneth, 27, 160 Heilbron, Hilary, 86 Human Rights Act 1998 (HRA)/ECHR 6, 93–4 Golder, 94 interview participants’ comments on, 93–4 interpersonal relationships, management of, 172–5 interview participants Aikens, Sir Richard, 21, 33, 41, 54, 59, 65–6, 71–2, 89, 124, 126–7, 128, 131, 137, 139, 146, 160–1, 178, 180, 185 Black, The Hon Michael, 20, 23, 34, 41, 42, 43, 44, 54, 73, 109, 110, 115, 124, 129, 132–3, 135, 136, 137, 158–9, 171, 173, 179–80, 185–6 ‘The Role of the Judge in Attacking Endemic Delays’, 38–9 Bleby, The Hon Justice David, 21, 33, 40, 43, 54, 55, 59, 60, 64, 123, 124, 127, 132, 161, 162, 170, 171 ‘The First Electronic Trial’, 170 Finkelstein, The Hon Ray, 4–5, 20, 23, 35, 43, 44, 54–5, 60, 107–8, 109, 110–11, 115, 123, 126, 129, 130, 137, 139–40, 143, 148–9, 157, 158, 159, 164, 167–8, 171–2, 174, 179, 194 Harper, The Hon Justice David, 23, 24, 30, 43, 59, 64, 70, 115, 124, 130, 132, 134, 164, 170, 171, 184 Lee, The Hon Malcolm, 34, 45, 54, 55–6, 59, 64–5, 70, 129, 132, 137, 139, 143, 144, 150, 151, 158, 174 McClellan, The Hon Justice Peter, 23, 27, 43, 64, 65, 70, 124, 127, 132, 133, 135, 153, 155, 156, 157, 164, 166, 167, 169, 184 McDougall, The Hon Justice Robert, 24, 27, 30, 31, 33, 35, 40, 56, 60, 64, 65, 70, 109, 110, 111, 114–15, 124, 125, 129, 132, 137, 140, 147, 150, 151, 153, 155, 156, 161, 162, 170, 174, 180

Index  219 Martin, The Hon Chief Justice Wayne, 19, 35, 41, 43, 44, 54, 59, 60, 64, 70, 123, 124, 125, 126, 129, 130, 131, 137, 138, 139, 143, 144, 149, 165, 174, 179, 194 Owen, The Hon Neville, 23, 33, 35, 39, 43, 59, 61, 64, 129, 130, 132, 133, 134, 146, 152, 155, 157, 159, 161, 164, 170, 172–3, 180 ‘Surpassing Sisyphus’, 152, 162, 171 interview participants (anonymous) A3, 53–4, 132–3 A4, 32, 33, 40, 45, 55, 60, 64, 109, 110, 111, 114, 115, 123, 127, 132, 133, 135, 137, 138, 143, 145, 150, 151, 152, 156, 161, 164, 166, 169, 170, 174, 185 A5, 24, 27–8, 30, 32, 33, 35, 40, 43, 45, 46, 71, 109, 115, 123, 124–5, 127–8, 129, 137–8, 139, 143–4, 150, 151, 158, 159, 161, 165, 166, 167, 170, 171, 179, 180, 194 A6, 22, 31, 33, 34, 40, 43, 73, 109, 110, 111, 115, 116, 124, 125, 127, 129, 132, 133, 137, 139, 145, 146, 150–1, 153, 157, 162, 168, 170, 173, 179, 182, 185 A7, 170 A8, 23, 30, 43, 44, 61, 109, 114, 115, 124, 126, 127, 129, 130, 151, 168, 169, 179, 196 A9, 20–1, 23, 32, 33, 43, 55, 59, 64, 70, 109, 110, 111, 115, 116, 132, 133, 155, 156, 157, 158, 161, 167, 194 A10, 131, 150 A11, 145, 146 A12, 32 A13, 146, 150, 167 A14, 145 A15, 27, 30, 32, 33, 40, 43, 54, 64, 70, 109, 110, 111, 115, 124, 125–6, 132, 133, 137, 139, 143, 144, 148, 158, 160, 161, 162, 194 A16, 27–8, 30, 33, 36, 39, 40, 54, 55, 60, 64, 65, 70, 72, 109–10, 115, 124, 125, 129, 133, 135, 137, 138, 143, 150, 151, 155, 169, 179, 184, 195 E1, 25, 32, 33, 43, 46, 54, 60, 65, 70, 88, 94, 123, 124, 126, 131, 134, 137, 139, 140, 143, 152, 184 E2, 33, 34, 40, 43, 44, 54, 55, 60, 70, 71, 88, 124, 126, 127, 129, 137, 139, 140, 143, 144, 173, 179, 194

E3, 24, 31, 34, 40, 41, 55, 60, 64, 94, 96, 123, 126, 129, 132, 133, 135, 138, 145, 146–7, 156, 161, 163, 169, 180, 194 E4, 32, 33, 35, 41, 44, 55, 59, 65, 70, 73, 88, 123, 124, 126, 137, 139–40, 143, 144, 155, 170, 171, 172, 174, 179, 182 E5, 21, 32, 33, 35, 45, 54, 61, 65, 70, 71, 73, 88, 123, 124, 137, 140, 143, 145, 149, 157, 170, 171, 172 E6, 20, 23, 27, 33, 123, 150 E7, 27–8, 54, 64, 70, 89, 124, 143, 179, 184 E8, 23, 43, 94, 124 E9, 27, 45, 46, 88, 96, 124, 126, 130, 131, 133, 143, 145, 179, 193 E10, 20, 32, 33, 35, 43, 46, 59–60, 64, 65, 71, 88, 94, 126, 131, 137, 143, 144, 161 E11, 20, 33, 35, 44, 54, 59, 64, 65, 70, 87–8, 94, 98–100, 131, 132, 137, 143, 184, 185 E12, 26, 32, 33, 55, 59, 65, 88, 94, 133, 137, 185 Jackson, Justice Ronald, 3, 18, 19, 29–30, 34, 38, 81–2, 111, 113, 123, 155, 163, 203 Jackson Report (2008) (Review of Civil Litigation Costs), 90–3 CPR amendments following, 91–3: see also Civil Procedure Rules (CPR) (1999) difficulties of adjustment to, 92–3, 148–9 discovery/disclosure, recommendations, 148 emphasis on proportionality, 54n18, 86, 90–2 public justice/public efficiency/efficiency between the parties, 91–2 mega-litigation, limited impact on, 92 Jacob, Sir Jack IH, 4, 75, 76, 78–80, 84 Jolowicz, JA, 11, 12 judges: see also mega-litigation, burdens and benefits, burden on judges; mega-litigation judges in the Commercial Court, 95 evolvement of role, 181 justice/fairness as priority, 8, 60–1, 77, 121, 122, 133–6, 141, 175, 181 theory in decision-making, 72–3

220  Index Judicature Acts 1873/1875 ‘complete justice’/justice between the parties as priority/sole goal, 74, 76–80, 85 party control as feature of, 78–9 as response to mid-19th century problems including law/equity split, 75–8 Judicature Acts 1873/1875, jurisprudence following The Ampthill Peerage, 78 Clarapede, 77, 78 Clough and Rogers v Frog, 77–8 Cropper v Smith, 77, 78 Johnson v Gore Wood, 78 Queensland v JL Holdings Ltd, 77 Shannon v Lee Chun, 77 Tildesley v Harper, 76 judicial discretion: see expert intuition judicial education: see also mega-litigation judges, personality and experience, experience and education as contribution to understanding of education in handling mega-litigation informal support networks as substitute, 194 Manual for Complex Litigation, 195 reservations/judicial reluctance, 194–5 what it can/can’t do, 195 expert intuition and, 183–4, 186, 188, 195 judicial recruitment, problems/solutions, 195–6 justice between the parties: see also partycontrolled justice accuracy at a cost: see justice–efficiency relationship (Dworkin) (moral harm); justice–efficiency relationship (Posner) (economic cost/benefit analysis) accuracy/cost/time, interrelationship: see justice–efficiency relationship (Zuckerman) (‘three dimensions of justice’) complete justice, 76–80, 82, 85, 86–7, 89 giving the parties what they want distinguished, 11, 65, 136, 160, 191 as judges’ legal obligation, 4 jurisprudence Aon, 112, 116, 117 ASIC v Rich, 4 JL Holdings, 106–8, 114–16

justice of process/fairness: see fairness ‘overriding objective’ and, 111 CPR 1.1(2) (dealing with a case justly), 87, 89, 91 Federal Court of Australia Act 1976 (Cth), s 37M, 108–9, 111 perfect justice, 4, 44–5, 185–6 as priority/sole goal 20th century practice, 15 drawing the line, 4–5 Judicature Acts 1873/1875, 74, 76–80, 85 post-Woolf, 89 justice–efficiency relationship: see case management; Civil Procedure Rules (CPR) (1999); justice– efficiency relationship (Dworkin) (moral harm); justice–efficiency relationship (general); justice– efficiency relationship (Posner) (economic cost/benefit analysis); justice–efficiency relationship (Summers) (process values); justice–efficiency relationship (Zuckerman) (‘three dimensions of justice’) justice–efficiency relationship (Dworkin) (moral harm): see also Dworkin, Ronald justice at any cost vs cost/benefit analysis, 14, 61–2 difficulty of assigning economic value to moral harm, 63–4 ‘moral harm’ as compromise between absolute accuracy and pure efficiency, 51, 63 practical outcome of theory a defence against efficiency measures encroaching on judicial accuracy, 64 non-negotiable minimum standard of procedure, 51, 64–6, 72 procedural rights civil procedures that handle moral harm correctly, 62 consistent evaluation of moral harm in procedures, 92 prioritization of procedural rights, 62 procedures consistent with society’s evaluation of moral harm, 62 summary of theory, 61–2, 209 justice–efficiency relationship (general) commercial and non-commercial megalitigation cases compared, 37, 99

Index  221 expert intuition, role, 5, 8, 68, 177, 182–6: see also expert intuition means of achieving a balance focus on real issues/early identification of, 178–81: see also real issues, definition/need to focus on procedural techniques, 176, 178 party-controlled justice and: see partycontrolled justice party and public perspectives on, 13–17 suggested elements of acceptability/public confidence, 56 fairness, 55–6, 134–6, 175, 181 tensions between, 3–5, 7–8, 38, 43–6 justice–efficiency relationship (Posner) (economic cost/benefit analysis): see also Posner, Richard A compromise, importance of, 72 criticisms of difficulty of assigning economic value to justice values, 58–9 focus on procedural rules rather than procedural decisions, 58 as impractical/unrealistic, 59–60, 61, 184 prioritization of efficiency over justice, 59–60 ‘error’ costs vs ‘direct’ costs, 51, 57–8 ‘direct’ costs, 57 ‘error’ costs, 57 Posner’s revised terminology, 57n40 worked example, 57 optimal mix of accurate outcomes and efficient use of party and State resources as aim, 66 respondents’ responses, 59–61, 184 summary of theory, 209 justice–efficiency relationship (Summers) (process values): see also Summers, Robert criticisms of theory process values as means to an end rather than end in themselves, 67 values as substantive principles of law affecting procedural rules rather than self-standing rules of procedure, 67–8 empirical support for theory inclusion of inherent values in evaluation of procedure, 69 incorporation of natural justice and process values into rules of procedure, 68

judicial practice, 70–2 litigant appreciation of process values, 68 ‘procedural justice’ (Rawls) and, 69 ‘good result efficacy’ vs ‘process value efficacy’, 66–7 process values, 66–7 process values as procedural rules, 70 summary of theory, 51, 210 justice–efficiency relationship (Zuckerman) (‘three dimensions of justice’): see also Zuckerman, AAS accuracy/rectitude Bentham on, 3–4, 9–10, 52–3 as correct application of law to the true facts, 52–3 interdependence with cost and time, 10, 52–6 compromise/balancing, importance of, 12, 51, 54, 63, 64, 65–6, 72, 208–9 cost effect on access to justice, 10, 54 high litigation costs vs taxpayer subsidy, 54 justice at any cost, exclusion, 14, 53 public efficiency test, 53 interview participants’ comments on, 54–6 optimal mix of accurate outcomes and efficient use of party and State resources as aim, 66 summary of theory, 208–9 time/timeliness effect of delay on establishing the true facts/value of correct judgment, 10, 53 effect on plaintiff ’s/defendants, 53n10 value of the theory purpose of ‘three dimensions’ framework, 54n23 suggestive vs prescriptive, 54, 56 Kahneman, Daniel, 183 Kahneman, Daniel and Gary Klein, 183 Kakalik, James S et al., 13, 83 Kaplow, Louis, 59, 63, 67 Kaufman J, Irving R, 81 Law Council of Australia, ‘Regulation of Third Party Litigation Funding in Australia’, 28 Law Council of Australia and Federal Court of Australia, Case Management Handbook, 124, 145, 147

222  Index Legard, Robin, Jill Keegan and Kit Ward, 201 Legg, Michael and Andrew Higgins, 90, 91, 92 Legg, Michael (Case Management), 19, 24, 26, 29, 30, 80–1, 108, 142 Lehman, Darrin R, Richard O Lempert and Richard E Nisbett, 187 Lein, Eva et al., 25, 42–3, 96 Lenaghan, Nick, 173 litigation funding (England) availability as contribution to increase of mega-litigation, 27–9 maintenance and champerty Australian practice distinguished, 28–9 Criminal Law Act 1967 (abolition of civil and criminal liability for), 28–9 unenforceability of contract for, grounds, 28 litigation funding (general) benefits, 28–9 definition, 28 as risk management tool, 29 litigation funding, jurisprudence Arkin v Borchard Lines Ltd, 28–9 Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd, 28 Factortame (No 8), 28 Mobil Oil Australia Pty Ltd v Trendlen Pty Ltd, 28 Re Movitor Pty Ltd, 28 litigation funding/maintenance and champerty (Australia) Civil Law (Wrongs) Act 2002 (ACT), 28 Corporations Act 2001 (Cth), 28 Crimes Act 1958 (Vic), 28 Criminal Law Consolidation Act 1935 (SA), 28 Maintenance, Champerty and Barratry Abolition Act 1993 (NSW), 28 Wrongs Act 1958 (Vic), 28 Long Trials Working Party case management, focus on, 97 cross-examination time limits, 163 establishment/BCCI/Three Rivers, 18–19, 22, 96 findings, 97 membership, 96–7 recommendations on expert evidence, 165 List of Issues, 140 mega-litigation criteria, 18–19, 36

oral hearings, 169 written witness statements, 160, 161 success of/reasons for, 97, 175 Managing Justice (2000), 32, 108 Marcus, Richard L, 18, 128 Matruglio, Tania, 68 mega-litigation: see case management; mega-litigation, burdens and benefits; mega-litigation, causes; mega-litigation, definition/ criteria; mega-litigation judges, characteristics; mega-litigation judges, personality and experience; mega-litigation judges, sharing the burden; mega-litigation, jurisprudence; mega-litigation and the justice–efficiency balance/ participants’ comments on; megalitigation and ordinary litigation compared/distinguishing factors mega-litigation, burdens and benefits benefits (England), 42–3 burden on judges, 197: see also case management, pros and cons; mega-litigation, burdens and benefits; mega-litigation judges, sharing the burden Australia and England compared, 33 case management, 22, 33, 83, 127–8 disproportionate use of time, 40–1 early retirements consequent on, 39 family and health problems, 39 information overload, 39 mega-litigation, 19, 33, 35–6, 39–40 pre-trial/out-of-court time, 21–2, 33, 127–8 burden on judicial system/disproportionate use of resources, 19, 136–7, 197 disruption to work of court, 41–2 financial resources, 40, 42 judge’s time, 40–1 burden on public justice/opportunity costs, 42, 43, 136–7, 197 costs to parties (legal costs/time spent), 38–9, 197 interview participants’ comments on, 38–43 Jackson Report, impact, 92 mega-litigation, causes, 24–32 complexity of commercial life, 24–6 corporate group model, frequency of, 25 expert evidence, impact on litigation, 26

Index  223 foreign law dominance, 25–6 globalisation, effect, 25–6 high stake disputes, 25 individualised justice, 29–30 legal culture/adversarialism, 30–2, 34–6 litigation funding, availability of, 27–9, 35 litigation in person, 32 technology and documents, proliferation of, 26–7 indiscriminate use of, 27 mega-litigation, definition/criteria, 3, 18–37 complexity of legal and factual issues, 23–4 factors making for, 23–4 hearing time, 21–2 Australia and England compared, 21 cases which do not proceed to judgment, 22 impact of out-of-court proceedings, 21–2 intensity as better measure, 22 measuring time taken, 21–2 high stakes high stakes without mega-litigation, 20 mega-litigation without high stakes, 20 non-monetary stakes, 20 qualification as, 20 reasons for, 19 stakes not easily measurable in monetary terms, 20 multiple parties, 200–1 mega-litigation without multiple parties, 20 number of documents, reasons for/ significance, 22–3 suggestions for C7 case, 19 Long Trials Working Party, 18–19, 36 summary, 36–7 mega-litigation judges, characteristics, 121–36, 190 ‘active’, 122–8, 175 Australian and English judges compared, 124–7 definition of issues as key element, 124–6, 148–9 interview participants’ comments (Australian), 123–6, 127–8 interview participants’ comments (English), 126–7 ‘passive, neutral and inactive’ judge distinguished, 78–9, 89, 190 UK Commercial Court Guide, 123, 124–5

US Manual for Complex Litigation, 123 US Prettyman Report (1951), 123–4 ‘creative’, 128–30, 154 Australian and English judges compared, 128–30 Class Action and Electronic Trial Guide (Australia), 130 experience as basis for, 139 factors affecting creativity of English judges, 129–30 organizational creativity, 129–30 risk and, 130 UK Commercial Court Guide, effect, 129–30 US Prettyman Report (1951), 128 ‘fair’/justice/fairness as priority, 8, 60–1, 77, 121, 122, 132–6, 141, 175, 181: see also fairness ‘flexible’, 5, 8, 121, 130–2, 140, 154, 156–7, 158, 175–6, 197 prescriptive procedural rules, compatibility with, 131–2 terms for, 130 mega-litigation judges, personality and experience different judges doing different things, scope for, 136–7 experience-based creativity, 130 experience and education as contribution to understanding of: see also judicial education importance of engagement with parties, 138 importance of face-to-face communication, 139 importance of focussing on key issues, 139–40 lawyers’ tactical games, 138 parties’ motivations, 137–8 pressures on the parties, 137 experience and interpersonal relationships derived from, 140 expert intuition vs application of rule/ principle, 5, 8, 68, 177, 182–6: see also expert intuition interview participants’ comments on, 136–40 mega-litigation judges, sharing the burden collaboration with another judge, 152 court officers, delegation of procedural applications to, 151–2 impartiality of trial judge, as means of preserving, 152–3

224  Index jurisprudence ASIC v Rich, 153, 155–6 Baulderstone Pty Ltd v QIC Pty Ltd, 153 Bell Group, 152, 155 C7, 155 Park Rail Developments Pty Ltd v R J Pearce Associates Pty Ltd, 153 Super Pty Ltd v SJP Formwork (Aus) Pty Ltd, 153 panel of judges, 154–6 Australian practice, 155 Commercial Court and, 154–5 court resources, implications for, 156 interview participants’ comments on, 155–6 referees and assessors, appointment of advantages, 153 Australian jurisdictions, 153 CPR r 35.15 (assessors), 153 responsibility for remuneration, 153 separate determination of issues, 150–1 taking evidence on commission, 154 mega-litigation, jurisprudence jurisprudence relating specifically to case management techniques: see case management Alstom Ltd v Yokogawa Australia Pty Ltd, 21 Arkin v Borchard Lines Ltd, 28–9 ASIC v Rich, 20, 21, 24, 25, 37, 41 BCCI/Equitable Life, 18 BCCI/Three Rivers, 22, 96 Bell Group, 19, 21, 22, 23, 24, 25, 39, 40, 104 Berezovsky v Abramovich, 21, 22, 38–9 C7, 19, 20–1, 22, 34, 38, 39 Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd, 28 Centro, 22 Duke Group, 21, 25, 104 Factortame (No 8), 28 Idoport, 22, 37, 151, 154 McDonald’s Corporation v Steel and Morris, 35 Mobil Oil Australia Pty Ltd v Trendlen Pty Ltd, 28 Re Movitor Pty Ltd, 28 Trevorrow, 20 mega-litigation and the justice–efficiency balance/participants’ comments on, 43–7 rules, value of, 130–2

mega-litigation and ordinary litigation compared/distinguishing factors, 33–6 Australian and English views compared, 33–5 burden on the judge, 33 complexity of the factual and legal issues, 33 dynamics of the case for judge and counsel, 34–5 importance of developing procedural tools to meet the needs, 176 resources of the parties, 35 methodology used by author, 6–7, 198–206 anonymity option, 7, 205 constraints, 52, 87–8, 206 data analysis/coding, 204–5 data saturation, 6 date of Australian and English interviews, gap, 192 development of interview procedure, 202–3 development of interview topics, 201–2 information provided to interviewees prior to interviews, 207–10 participant review, 205 purposeful sampling, 199–200 risk and, 130 selection of interviewees, 198–9 list of interviewees, 211 stages of the research, 198 ‘thick description’, 121 Miles, Matthew B and A Michael Huberman, 204–5 Miller, Geoffrey P, 56 natural justice, 68, 96n57, 102, 103 Neate, Rupert, 38 Negowetti, Nicole E, 187 Odgers, WB, 75 overriding objective: see civil procedure rules (Australian jurisdictions) (‘overriding objective’ provision); Civil Procedure Rules (CPR) (1999) (England), r 1.1 (overriding objective: just dealing with cases) participants: see interview participants party-controlled justice: see also case management; justice between the parties adversarial system and, 78–80, 116, 190

Index  225 case management, impact of, 81–3, 109–10, 113–14, 158–60, 165, 167, 168–9, 178, 191 complete justice, 76–80, 82, 85, 86–7, 89 CPR/‘overriding objective’, impact, 88–9, 109–11 fundamental tenets on the role of the judge and, 79–80, 89 judicial impartiality and, 79 Judicature Acts, legacy of, 78–9 jurisprudence Aon, 91, 111–15 Cropper v Smith, 82 Expense Reduction, 113–14 Jones v National Coal Board, 79 Ketteman, 82 State Pollution Control Commission v Australian Iron & Steel Pty Ltd, 105 United Motors Retail Ltd v Australian Guarantee Corporation Ltd, 105 mega-litigation judges’ rejection of, 104–5, 121–2, 123, 136, 176, 190 public justice and public efficiency, incompatibility with, 81 Paterson, Alan, 7 Patton, Michael Quinn, 199–200 perfect justice, 4, 44–5, 185–6: see also justice between the parties Peysner, John and Mary Seneviratne, 83 Piggott, D, 78 Polden, Patrick, 76 Portland Communications (Who Uses the Commercial Court), 25, 95–6 Posner, Richard A: see also justice–efficiency relationship (Posner) (economic cost/benefit analysis) Economic Analysis of Law, 57, 209 ‘An Economic Approach to Legal Procedure and Judicial Administration’, 57–8 How Judges Think, 57, 186 Prettyman Report (1951), 123–4 procedural fairness: see due process (Australia); fairness procedural techniques: see case management, mechanisms Pronin, Emily, Daniel Y Lin and Lee Ross, 187 Pronin, Emily, Thomas Gilovich and Lee Ross, 187 proportionality as art of the possible/compromise, 44, 48, 54, 63, 72

CPR 1.2(c), 87, 88, 89 CPR 3.9 (post-Jackson amendment), 90–2 Federal Court of Australia Act 1976 (Cth), s 37M, 108–9 Jackson Report, 54n18, 86, 91–2 and justice/fairness, 46, 185 Woolf Report, 54, 86, 87, 89 Zuckerman, 10, 54 public efficiency case management, effect, 54, 81, 85, 104–5, 116, 177 definition/‘efficient use of court resources’, 14, 15 finite resources, acknowledgment of, 14–15, 53 Jackson Report, 91–2 judges’ approach to, 177 jurisprudence Aon, 112 Ketteman, 82–3 Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd, 83 mega-litigation, effect, 4, 38, 42, 43, 46–7 ‘overriding objective’ and CPR 1.1, 87, 89 Federal Court of Australia Act 1976 (Cth), s 37M, 108–9 party-controlled litigation and, 81, 116, 136, 177 post-Judicature Acts, 80 procedural techniques and, 175, 176 public interest in, 14–15 public justice distinguished, 14 technology and, 172 public justice access to justice considerations, 12–13: see also Woolf Report (1995) (Access to Justice) aspects of public confidence in/acceptability of the system, 56 public interest in the integrity of the system, 56 case management, effect, 54, 81, 104–5, 177 Jackson Report, 91–2 judges’ approach to, 177 jurisprudence Aon, 112 Ketteman, 82 Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd, 83

226  Index Mitchell, 92–3 UNISON, 11–12 United Motors Retail Ltd v Australian Guarantee Corporation Ltd, 12 mega-litigation, effect, 38, 42, 43, 46–7 ‘overriding objective’ and CPR 1.1, 87, 89 Federal Court of Australia Act 1976 (Cth), s 37M, 108–9 party-controlled litigation and, 81 post-Judicature Acts, 80 procedural techniques and, 175, 176 public efficiency distinguished, 14 technology and, 172 Rachlinski, Jeffrey J, 187 Rares J, Steven, 27, 42, 128, 143, 155 Rawls, John A, 55–6, 69 real issues, definition/need to focus on Australia and England compared, 126 case management as contribution to, 8, 85, 124–7, 144, 158–9, 177, 178–9 interview participants’ comments on, 178–80 documentary evidence and, 160 expert evidence and, 165–6 hearings, value, 145–6 jurisprudence, Bell Group, 134–5, 162, 180–1 justice to the parties, as contribution to, 11 justice–efficiency relationship, as key to resolving tensions, 5, 8, 135–6, 178–81, 191 lists judicially settled list of issues, 97, 124–6, 136, 139–40, 145–7 List of Common Ground and Issues, 124–5, 146–7 Long Trials Working Party’s view, 146 use in Australia, 124–5, 147 proactive role of judge, pros and cons in an adversarial system, 181 definition of issues as shared process, 181 out-of-court workload, 127–8 risk of divergence between judge and parties, 161 Redish, Martin H and Lawrence C Marshall, 67 referees, use of, 153

Resnik, Judith, 81, 84, 128n48 Ritchie, Jane, Jane Lewis and Gillian Elam, 199 Roach Anleu, Sharon and Kathy Mack, 7 Rogers J, Andrew, 80 Ross, Philip E, 188 rule of law, 11–12, 60 Sackville J, Ronald C7, 3, 19, 22, 29–30, 34, 38, 155, 163, 199, 203 early retirement, 39, 192 Foreword to Legg, 111 ‘Mega-Litigation’, 18, 24, 83, 113, 123 ‘The Future of Case Management in Litigation’, 92 Schwarzer J, William W, 81 Scott, IR, 83, 104 Solomon, Maureen, 80, 81 Sorabji, John, 11, 17, 75, 76, 86n1, 87, 89, 90, 91 Spigelman, James, 15 Summers, Robert: see also justice–efficiency relationship (Summers) (process values) ‘Evaluating and Improving Legal Processes’, 66, 68, 70, 210 technology advantages home-/remote-working, possibility of, 171 saving of time and space, 169–72 search facility, 171 cost considerations, 172, 192 in Australia, 192 definitions, 169 disadvantages indiscriminate use of databases, 27 lawyers’ abdication of responsibility for managing the documentation, 27, 160 proliferation of documents, 27, 37, 149 jurisprudence Bell Group, 171 C7, 170 Estate Mortgage, 169–70 video link, pros and cons, 25, 26, 171 Thai, Lang, 29 Thibaut, John and Laurens Walker, 11, 68 Tidmarsh, Jay, 187

Index  227 time/timeliness–justice relationship effect of delay on establishing true facts, 53 value of judgment correct in law and fact, 53 Zuckerman, 53, 208–9 trial structuring/timetabling Australian practice, 156–7 CPR r 29.8 (trial timetable requirement), 156 interview participants’ comments on, 156–7 justice–efficiency equation, 157 shift of control from parties to court, 156, 157 Tyler, Tom R, 11, 68 United States case management increasing caseloads/backlogs and, 81 as judge-led reform, 81–2 Manual for Complex Litigation, 123, 195 overriding objective (Federal Rules of Civil Procedure (US), r 1), 108 Uzelac, Alan, 79 Vickery J, Peter, 27 video link, pros and cons, 25, 26, 171 Vorrasi, Kenneth M, 79 Walker, Laurens, E Allan Lind and John Thibaut, 68 Webley, Lisa, 199 West, Michael, 38

Woolf Report (1995) (Access to Justice), 86–90 access to justice as a key objective, 87 Civil Procedure Rules (CPR) (1999) and, 87 effectiveness/obstacles to implementation, 89–90 attachment to established values of the English justice system, 89 failure of courts to implement CPR in the light of overriding objective, 90 failure to realize there had been a change, 89 failure to reduce cost/time, 90 justice between the parties as perceived priority, 89 sanctions for non-compliance with CPR, 90 interview participants’ comments on, 87–8 ‘proportionate justice’ vs ‘complete justice’, 86, 87, 89 revolutionary nature, 87–8 Zuckerman on, 31 Zuckerman, AAS: see also justice–efficiency relationship (Zuckerman) ‘A Colossal Wreck’, 22, 96 ‘Justice in Crisis’, 4, 31, 52, 53, 54, 56, 208 ‘Litigation Management under the CPR’, 14, 63, 76, 90 ‘Lord Woolf ’s Access to Justice’, 31 ‘Quality and Economy in Civil Procedure’, 10, 12, 52, 53, 54, 64, 69 ‘A Reform of Civil Procedure’, 53, 54, 80 ‘Reform in the Shadow of Lawyers’ Interests’, 31 Zuckerman on Civil Procedure, 10, 53

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