The Future Lawyer Weekly Briefing – W/C 27th March 2023

A CRITIQUE OF THE SNAIL-PACED LITIGATION PROCEDURE

Briefing by Daniel Kodjovi

“Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.'” Lord Denning made this pronouncement in the case of Metropolitan Properties Co (FGC) Ltd v Lannon.[1]

The resolution of conflict is one of the banes of every developed country. A robust judicial system facilitates justice delivery. Aggrieved parties often approach the court to, among others, seek adequate redress through damages, injunctions, and specific performance.

However, over the years, the courtroom has been portrayed as a waste of time due to the contingencies surrounding the adjudication of lawsuits in a manner that upholds justice. Unfortunately, parties are no longer aggrieved to continue the proceedings due to the snail-paced litigation process.

The issues bedevilling litigation

The term litigation is a contest in a court of justice to enforce a right.[2] The yardstick to determine justice delivery remains a predominant issue that is not avoidable.

There are several factors contributing to the inadequacies of litigation.

These are:

The inability to choose the decision-maker: Unlike Alternative Dispute Resolution (ADR), parties to a suit in litigation are to appear before judges appointed by the legislative, executive and judiciary.

Although these arms of government appoint these persons not to enable parties’ suits to be predisposed to impartiality, parties are restrained from conjunctively deciding who will adjudicate on their case.

Expenses and time constraints:

Due to the number of cases filed in court, there is usually a backlog of cases still needing to be resolved. The legal maxim, ‘justice delayed is justice denied’, is apparent in litigation due to the substantial volume of cases pending in court.

Also, the monetary expenses prescribed, ranging from the case filing to the disbursement of professional fees, are exorbitant and, therefore, unaffordable to most.

Privacy:

Except in exceptional cases, the process, judgment, and entirety of a proceeding are usually revealed to the entire public. In this regard, information intended by the parties to reach the public would have swiftly been disseminated through various social media handles.

Impact of the identified issues on society

Eschew from litigation:

The continuous growth of the inadequacies of litigation will instil fear in the public’s mind to never approach the courts. This impact extends towards the judiciary as a whole – people will no longer view the courts as man’s last hope.

Emotional distress:

The prolongation of lawsuits has become a norm to ensure that justice is not only done but seen to have been done. The financial constraints involved in the litigation process are overwhelming, and such a problematic situation will spur emotional distress and psychological debasement.

The role of judges, lawyers and law firms in curbing the identified issues

In a bid to tackle the aforementioned problems, judges, lawyers and law firms have a crucial role to play.

Firstly, judges are known to be the upholders of justice because of the nature of their job of adjudicating on matters. One of the roles judges play in this regard is to ensure that complex commercial transactions be referred to an arbitral tribunal.

Although arbitration demands that for such proceeding to commence, there must have been an agreement of parties in the purported contract to that effect. However, suppose the court has deemed that resolving the dispute through arbitration will be the only option to ensure a speedy resolution. In that case, the court can transfer those disputes to arbitration with the parties’ consent.

Lawyers and law firms are meant to use their initiative to ensure a swift resolution of the dispute. Disputes are not only resolved in court but also outside the courtroom. Therefore, lawyers should adopt various alternative means of resolving disputes, which rely on convincing clients that litigation will only augment disputes.

Considering the disadvantages plaguing the courts, lawyers and judges have a crucial role to play by adopting various ADR mechanisms to dispense justice effectively, efficiently, and timely.

Sources

[1]  [1968] EWCA Civ 5, [1969] 1 QB 577

[2] Blacks Law Dictionary 2^nd Edition.<https://thelawdictionary.org/litigation/> accessed March 11, 2023.

PERVERSE VERDICTS

Briefing by Aqua Koroma

Bushel(l) ‘s Case (1670) 124 ER 1006 established the complete autonomy of a jury, thereby granting juries the power to make decisions and, specifically, to acquit as they saw fit, without fear of intimidation or punishment. Refined over the years, this ability has often resulted in the proclamation of perverse verdicts. A perverse verdict is a decision either contrary to the weight of evidence, that is, on the point of facts, or a judge’s direction, with the latter primarily on the issues of law.

The controversy stemming from perverse verdicts is that jury autonomy is primarily contingent on considering facts without ambiguity. Consequently, the intrinsic nature of perverse verdicts undermines this principle, and whilst the independence of a jury should always remain inviolable, perverse verdicts often destabilise public confidence and the rule of law, further engendering a legal sector divide.

Infamous examples of perverse verdicts

Perverse verdicts are a constant source of consternation. When the cases for which those verdicts are reached are reviewed, there is little difficulty in understanding the reasons for alarm. Criminal cases are especially of concern whereby a jury must incite the highest standard of proof, that is, beyond a reasonable doubt, through facilitative moral and ethical values.

This standard is employed when guilty verdicts and acquittals are considered. Therefore, whereby there is evidence contradicting acquittals to varying degrees, it is rightly arguable that juries, should they reach verdicts defying evidence or a judge’s direction, may not exert their power to such a degree that promotes the realisation of justice and upholds the principles of the rule of law, more specifically, fairness in the application of the law.

Take Clive Ponting, a civil servant turned whistleblower who worked for the British government. He leaked classified documents in 1984 concerning the sinking of the Argentinian cruiser General Belgrano during the Falklands conflict. He thus stood accused of breaching the Official Secrets Act. Despite his admittance to the violation and a direction from the judge stating Mr Ponting had no defence in law, and he should thus be convicted, he was nevertheless acquitted by the jury in 1985.

The Colston Four, Rhian Graham, Milo Ponsford, Jake Skuse and Sage Willoughby, who following the murder of George Floyd, partook in protesting racism and police barbarity in the summer of 2020. They formed a group of protesters who threw the statue of Edward Colston, an infamous slave trader, into a harbour after pulling it down from its platform in the Bristol City Centre. The Colston Four were charged with criminal damage in contravention of s. 1 of the Criminal Damage Act 1970. The defendants did not deny their actions, although they pled not guilty to the criminal damage charges. However, despite the activities of the Colston Four satisfying some of the legislative requirements of the Act, they were acquitted by the jury on 5^th January 2022, following a majority verdict of eleven to one.

There is also the infamous betting and bribery trial of Bruce Grobbelaar, a former goalkeeper primarily associated with Liverpool FC. He and other defendants were prosecuted for rigging premier league matches in return for substantial sums of money, with damning video evidence supporting the claims. Despite the indisputable evidence, and following two successive trials, he and his co-defendants were fully acquitted in November 1997. The jury could not reach a verdict at the end of both trials.

Impact of perverse verdicts

The legal sector stands divided on jury independence. Many consider perverse verdicts a destabilising factor and, consequently, a threat to the rule of law, and others are unequivocal in endorsing such decisions. For instance, whilst the UK government were a staunch critic of the conclusion reached in the Colston Four trial, the then Attorney General stated that ‘trial by jury is an important guardian of liberty and must not be undermined’.

Jury autonomy is conducive to the doctrine of the separation of powers in ensuring liberties are continually protected. Lord Justice Auld states that perverse verdicts ‘has been an accepted feature of our jury system for a long time and is seen as a useful long-stop against oppression by the State’.

Conversely, he voiced that a perverse verdict was an affront to the legal system and that the law should be amended to reflect that juries do not possess the right to acquit a defendant in the face of clear evidence indicating otherwise or in defiance of the law. However, the risk associated with such impositions is that some guilty verdicts may be ‘unsafe’ owing to precedence placed on merely satisfying legal obligations instead of adequately considering the evidence presented.

In conveying such verdicts, many victims and their loved ones do not realise justice. Some perverse verdicts, especially those concerning criminal cases such as sexual assault and murder, are especially damaging and inevitably, and perhaps exponentially, erode public trust in the legal system.

Juries are not required to give reasons for their verdicts; therefore, unpleasantries, for example, jury prejudices and biases, may go unnoticed or unchallenged. Further, as juries do not follow precedents, it is impossible to predict a verdict, and with many jurors having little or no legal experience yet having to deal with the substantives of law, there is the question of whether trial by jury is an effective method of upholding the rule of law.

It is difficult to glean what may be the solution to resolving what appears to be an ominous paradox. Whatever the resolution procured, a detrimental mainstay would be that juries must remain free to make decisions as they see fit, thus keeping in line with their independence, thereby upholding the doctrine of the separation of powers and, consequently, the rule of law.