Across Australia, court processes have been reformed in an effort to reduce the cost and length of litigation, with mixed results.
The civil justice system works reasonably well for low-level disputes that can be dealt with by small claims courts, and large-scale disputes which receive intensive case management.
For those disputes that fall in between, however, the justice system is often too slow, too formal and too expensive. And while the move towards informal or alternative dispute resolution mechanisms is positive, not all disputes can be resolved in this way.
A basic problem is the lack of certainty as to the cost and overall potential exposure of litigation. Under our current system, the losing party pays part of the winner’s legal costs. While this policy is defensible, it does create an obvious problem when estimating the potential overall cost of the dispute, because a party has little effective control over what is being spent by an opponent.
For many mid-range disputes, a simpler, more prescriptive process which delivers a greater degree of certainty and predictability on timing and costs could mean that disputes are resolved more quickly and cheaply.
Expedited arbitrations are an example of such a process. They allow disputes to be resolved in a shortened time frame and at a reduced cost.
Specialised courts in overseas jurisdictions have rules and procedures which remove some of the variables that blow out costs. Australia can learn from these experiences.
Drawing on overseas experience and with the expedited arbitration process in mind, this is how a mid-range disputes model could work here.
First, both the claimant and the defendant would set out their case as fully as possible at the outset, when filing a claim for relief or a defence.
For each fact relied upon, the statement would refer to all documents, other evidence and witnesses to be relied upon, and contain a signed outline of the evidence that each witness (if required) would give, with limited scope for amendments or additional evidence.
With the issues crystallised early, settlement would be more likely, unmeritorious claims less likely, and it would be unnecessary to incur the expense of preparing separate trial bundles containing all the materials — the plaintiff’s statement of claim, the defence filed in response, particulars, witness statements, copies of documents and so on — that are expected to be referred to at the trial.
Secondly, the case would be listed for trial immediately after the preliminary steps are completed, unless the court orders mediation. Discovery should not be ordered unless there is a clear and tangible benefit that outweighs the costs.
In a standard case, there would be few, if any, pre-trial hearings or case management conferences, and those that occur should be by way of phone or videoconference.
The trial itself would also be highly streamlined and, for many disputes, could take place without oral hearings. There should be no cross-examination or expert evidence unless, on a costs-benefits analysis, there is a sufficient forensic reason for this to occur.
Even then, it should be limited to discrete and specific topics arising from the outlines filed with the case statement or defence. Any expert evidence should identify the matters on which they all agree or disagree.
Costs limits would be another key feature of a simplified model. Clear caps on the maximum award of damages or compensation — perhaps $500,000, unless all parties otherwise agree — along with a cap on overall costs recovery would provide more certainty on costs outcomes and help overcome a lack of equitable access to the civil justice system.
An added benefit of these limits is that they should help drive efficiencies and ensure that lawyers’ fees are proportionate to the amount at stake.
Overall, this simplified or expedited procedure should radically reduce the time taken in getting a matter to trial, limit the expense of litigating and provide a greater degree of certainty.
For a great many individuals and small-to-medium enterprises, a simplified disputes model would be an attractive option that could turn access to justice from a nice idea in theory into something attainable in the real world.
The time is surely ripe to run a voluntary pilot program in our courts and open the way for greater justice in outcomes.
This article was first published in The Australian, 5 May 2017