The Collective Interest in Private Dispute Resolution

1. Introduction

Lawyers in the common law world have long made bold claims about the importance of the collective interest in the resolution of private disputes at trial. Authoritative judgments are expected to contribute to the maintenance of order, are central to the actualization of the rule of law and provide a legitimate process through which state coercion is justified. The fact that adjudication of private disputes occurs in public also engenders broader political debate and is suggestive of a healthy public sphere. In this article, I focus on just one aspect of the collective interest in private disputes: the development of judicial precedent. Traditionally viewed as the cornerstone of the common law, precedent is central to the way we teach and talk about the radiating effect of private litigation. The appellate courts are viewed as having an exemplary role in the cognitive and normative domains by using individual disputes to constitute and justify a particular view of how the social world we all live in is and ought to be.¹ Precedent is important to us all not only because of the solution it provides to a particular dispute but also because of the ways in which it facilitates bargaining in the shadow of the law by future unknown disputants. We commonly understand the dilemmas posed by a test case as reflecting tensions between the interests of the individual parties and the broader collective or public interest. However sceptical we are of the claims made on law’s behalf, we continue to allow the symbolic test case and discussion of its implications to seduce us.²

These various claims suggest that we have a very strong commitment to developing and promoting precedent. In the account of doctrine presented in this article I attempt to test this assumption by considering the extent to which the rules governing the management of civil litigation can be said to reflect a genuine commitment to the development of the common law. In particular, I attempt to chart shifts in thinking about the ideologies underpinning our civil justice system in the aftermath of the Woolf Report and subsequent reforms. My argument is that despite our many claims about the dynamism of the common law its advancement remains worryingly haphazard. Moreover, claims about the development of doctrine are rendered somewhat hollow if our legal system is not facilitating the pursuit of cases with precedent-setting potential. It is contended that this situation is likely to get worse as faith in the litigation system as a vehicle for change or site of democratic practice diminishes, as has been predicted.³

This is far from being the first time that concerns about the relationship between precedent and civil litigation have been raised within the academic community,⁴ but I suggest that the issue has taken on a new urgency in the light of three developments. First, the resolution of civil disputes is increasingly being conceptualized by policy makers as an exclusively private affair best resolved by the parties rather than being considered in the public arena of the trial. The English civil justice system has always provided strong incentives for out-of-court settlement but recent governments have devoted increasing attention to referring cases out of the litigation system and into the private forums of mediation and bilateral settlement. The priority given to this imperative is also reflected in the level of funding allocated to empirical research on the topic. Indeed, it could be argued that the issue of which cases should be referred out of the courts is in danger of becoming one of the most over-researched questions about civil justice of our generation.⁵ In the sections that follow I argue that the tendency to refer cases out of the litigation system is now so strong that it is time to turn to consider the equally important question of how we identify those cases that must get to trial if both the needs to individuals and the collective need for developing doctrine are to be served.

Secondly, debate about the promotion of precedent is increasingly important in light of the intensity of discussion about the ‘vanishing trial’ across common law jurisdictions.⁶ We now have a rich stream of statistical accounts of the diminishing use of public adjudication across subject matter, types of trial, and jurisdiction.⁷ Research on the English position shows that, although the number of criminal hearings is increasing and the number of trials has now stabilized in the county court and Queens Bench division, rates are flatlining at levels well below previous decades.⁸ A concern regularly alluded to in debate is that the precedent-setting capacity of the superior courts will be impoverished as a result of having to draw from a smaller pool of litigated cases.⁹ However, while the impact of the vanishing trial on precedent is frequently raised as a problem, hardly any attention has been paid to the detail of how the problem might be addressed.¹⁰

It is often argued in accounts of the vanishing trial that the situation could be reversed if only litigants were given greater access to trials, less encouragement was given to mediation initiatives, or more generous legal aid were made available. In my view, these arguments are based on false premises when applied to the problem of whether the legal system facilitates adjudication and precedent setting. More mediation does not necessarily mean fewer trials since court-sanctioned mediation might attract cases that would otherwise have been settled through a process of bilateral negotiations. More proceedings being issued does not necessarily mean more trials if there are incentives for early settlement. At the same time, fewer trials does not necessarily result in fewer precedents if procedural filters are put in place to identify and promote the cases that would usually be propelled to trial.¹¹ It follows that the thesis I pursue in the sections that follow is not necessarily concerned with the quantity of trials or appeals. Instead, my focus is on the mechanisms that exist to propel cases with precedent-setting potential to the appellate courts. It is contended that there seems little point in generating more trials and a larger pool of cases with precedent-setting potential if we then squander opportunities for those cases to be heard. It could even be argued, as is often assumed, that a representative pool of cases with precedent-setting potential is already reaching our senior courts. The question I pose here is: how do we know?

Finally, there are indications that the government, courts, academics and pressure groups are becoming increasingly interested in the ways in which the collective interest can be protected.¹² This is evident from the powers given to public bodies such as the Office of Fair Trading and the Equality and Human Rights Commission to mount ‘super complaints’, test cases, and conduct interventions in litigation in the public interest.¹³ The courts have also become increasingly receptive to applications for judicial review by people or organizations who wish to assert a public interest in having an issue determined but have no directly affected interest of their own in a dispute.¹⁴ The new taste for third-party interventions has generated a significant amount of attention and non-government organizations and pressure groups have intervened in an ever-increasing number of cases, some of them high profile.¹⁵ While these developments are undoubtedly of considerable significance in the context of the questions posed by this article, I do not consider them in depth here. In part this is because of limitations of space but it is also because much of the debate about the collective interest in this context focuses on public law and human rights issues. These are vital issues but my broader interest in the development of precedent means that I am equally interested in the plight of those whose cases raise private law issues. I also argue that, in addition to discussion of the ways in which organized interest groups, corporations, and government departments fuel doctrine, we should remain curious about other, more traditional, precedent-setting trajectories. Third-party interventions are clearly of growing significance but they still only account for a third of the cases decided by our most senior domestic court.¹⁶

It is important to acknowledge from the outset that in the vast majority of cases that enter the litigation system the parties neither expect nor desire that their dispute will end up at trial, let alone in an appeal court. Of those cases that do proceed to trial many do not have precedent-setting potential, raise broader issues or even involve much law. It follows that the cases with which this article is concerned constitute a very small proportion of justiciable disputes. It is also acknowledged from the outset that it is almost impossible to say anything sensible about how many cases need to be considered by the superior courts for claims about the evolutionary tendencies of the common law to have credibility. The questions pursued in the sections that follow are much more modest and focus on the potential barriers to precedent-setting activity. In what ways do the rules governing civil litigation promote the hearing of cases with precedent-setting potential? What evidence is there to suggest that the goal of replenishing precedent continues to be considered important in the 21st century?

2. The Relative Importance of Individual and Collective Interests in Litigation

It will become clear in the sections that follow that the English civil litigation system anticipates that individual litigants, judges and interested third parties all have a formal role in pursuing, or facilitating the pursuit, of cases with precedent-setting potential. Despite this, it is undoubtedly the case that the private interest in dispute resolution has long trumped the collective interest in standard setting. The English civil litigation system relies almost exclusively on individual disputants with their own particular needs to take to trial cases that could be of significance to us all. The pursuit of litigation is largely dependent on the whim of disputants who can decide to litigate, abandon or settle a case without reference to the collective good in having the issue aired or determined in public. Even when the parties are determined to pursue a case, there is no requirement that they use the courts since the high regard for party autonomy also extends to forum shopping. So, for instance, commercial arbitration has long competed with, and been recognized as legitimate by, the state legal system.¹⁷ Moreover, the state’s interest in private forums for dispute resolution amounts to more than mere tolerance of them. Resolution through alternative avenues is actively encouraged leading Resnik to argue in a US context that it is court-based adjudication rather than adjudication in general that is in decline and that the trial may not be vanishing but morphing or migrating.¹⁸ Most importantly in the present context, these approaches to dispute resolution inevitably render the rule-making capacity of the courts random. Viewed in this way, it could be argued that, rather than being seen as central to the civil justice system, precedent setting is more accurately described as a mere by-product of the pursuit of private interests.

The fact that the English civil litigation system is primarily geared towards the vindication of the rights of individuals can be extensively illustrated. Judges in the Anglo-American-Commonwealth tradition are reactive. They do not look for cases to adjudicate as might happen in other jurisdictions. The enforcement of private rights operates on the assumption that people know or find out their rights and take the initiative to enforce them when they so desire. It is litigants and their advisers who retain control over whether to bring or defend a claim. Working within the rules of evidence, they decide what information to gather, remain in control of the sifting and selection of what evidence to use during the trial, as well as the forms of inquiry to be adopted when interrogating the other side’s evidence. The Civil Procedure Rules make frequent references to the views of the parties in identifying issues, in the making of directions, and the allocation of cases to track.¹⁹ Adjudication is confined to the issues raised by the parties in their pleadings and, other than in cases involving vexatious litigants or those where an insufficient case has been made out, the parties have the power to terminate their involvement at any point they wish to by abandoning or settling their claim. Even the ‘leapfrog procedure’ which seeks to minimize the number of appeals that need to be made before an important point of law can be considered requires that both parties to the action must agree that an action should circumvent the usual route for appeal and go straight to the Court of Appeal or Supreme Court instead.²⁰

These characteristics of the English civil litigation system have serious consequences for even the most devoted public-interest lawyers. The dilemma faced by practitioners with a strong desire to run a test case is that their primary duty is to their client rather than the collective good. This point is brought home by the data collected by the Public Law Project as part of its research into the use of mediation in judicial review actions. Interviews with experienced public law practitioners revealed very low expectations of test-case strategies attaining their goals. Interviewees drew attention to the fact that when a private settlement is offered which satisfies their client’s particular needs the practitioner is compelled to accept because their professional duty is to act in their client’s interest.²¹ Reflecting on the individualistic orientation of legal systems such as the English one, Damaska has argued that such reactive approaches to adjudication are inextricably linked with a belief in the free market and an assumption that the courts should only intervene in disputes when individuals ask them to.²² Viewed in this way, we can see party control of civil proceedings as the classical liberal impulse to minimize the influence and power of the state.²³

While the civil justice system is clearly dominated by an orientation towards private interests, it would be inaccurate to suggest that the architects of civil procedure have shown no interest in issues that go beyond the immediate concerns of the parties. The wording of the ‘overriding objective’ of the Civil Procedure Rules makes clear that in approaching cases reference should be made amongst other things to the importance or complexity of the issues in dispute.²⁴ Little guidance exists on how we should go about interpreting the notion of importance in this context although it has been acknowledged that the various factors outlined in this section could pull in opposite directions.²⁵ There is also an expectation in the rules that resources devoted to dispute resolution be ‘proportionate’. Whilst discussion of proportionality has been dominated by talk of the disproportionate amount of money expended in pursuing relatively small claims, the concept is open to broader interpretation. Much less often considered is the contention that a proportionate use of resources may allow large amounts of money to be spent on investigating and adjudicating a small claim that raises big issues. One could imagine, for instance, a case involving an unconscionable but widely used standard term in small-value mobile phone contracts, the interpretation of which could affect millions of people.

An analysis of the rules relating to the process of allocating cases to one of the three litigation ‘tracks’ suggests that, whilst this broader interpretation of the concept of proportionality is possible, the general assumption is that it is high-value or factually complex cases that should attract the most resources rather than the ‘high-interest’ cases with which I am concerned here. The presumption is that the small claims track is generally for cases with a claim value of up to £5,000 that do not require substantial preparation by the parties involved. Small claims hearings are designed to be accessible to people who do not have representation and to last no longer than an hour. The ‘fast track’ is prescribed for cases with a claim value of between £5,000 and £25,000 that involve issues that are not complex enough to merit more than a one-day trial. Finally, the multi-track is designed for cases with a claim value exceeding £25,000 involving issues complex enough to need preliminary hearings and a trial of longer than one day. Claims on the small claims or fast track will be heard in a county court while claims allocated to the multi-track are likely to be heard before more senior judges in the High Court.²⁶ It can be gleaned from this that allocation decisions are determinative of the time and effort to be devoted to the identification and investigation of the wider issues posed by a case and that allocation to the small or fast track could seriously impede the possibility of developing an argument with precedent-setting potential.

This general focus on equating the importance of claims with their financial value is mitigated in a number of ways. It is accepted, for instance, that certain types of claim such as industrial disease claims or clinical negligence claims are so inherently complex that they should not be allocated to track by reference to value alone. More significantly, when determining which of the three litigation tracks a case should take, judges are required to pay attention to ‘the importance of the claim to persons who are not parties to the proceedings’²⁷ and, when making a decision to re-allocate a claim from one track to another, reference must be made to broader interests such as ‘the importance of the outcome of the claim to the public in general’.²⁸ Additionally, the fact that a court may seek the assistance of an ‘advocate to the court’ in cases where there is a danger of an important or difficult point of law being decided without all relevant arguments being presented also suggests commitment to the idea of cases with precedent-setting potential being identified and promoted.²⁹ The wording of these various provisions suggests that when cases come into the system that raise questions of broader interest there is considerable scope for members of the judiciary to ensure that adequate resources are diverted to investigating and considering them.

Despite these formal recognitions of the possibility of certain cases being allocated out of their natural track, research has revealed that a number of practical difficulties exist in the identification of the collective interest that impact disproportionately on ‘one shotters’ with low-value claims.³⁰ First, considerable emphasis is placed on the parties identifying the pertinent issues in their pleadings. Changes to the legal aid scheme implemented in 2013, together with existing practices that anticipate that small claims will not be allocated legal aid, mean that in future we might be relying on a larger pool of litigants in person to prompt debate of the broader issues raised by small-value claims with the potential to raise big issues.³¹ Secondly, across cases problems are likely to occur when allocation to track happens at an early stage of proceedings and is undertaken by junior judges operating under time constraints. Finally, there seems to be little prospect of review of decisions made at this level. The appellate courts have made clear that it is for judges at the coalface of the civil justice system to strike the balance between the various and sometimes competing criteria relating to proportionality and that they will be slow to interfere with these case management decisions.³²

The expanding class of litigants in person following legal aid reforms might be forgiven for not knowing that the ‘importance of the case to people other than litigants’ is one of the criteria that should be used by judges in making an allocation decision. Moreover, her Majesty’s Courts Service’s leaflet on allocation to the small claims track informs us that the judge will take account of what has been said in the allocation questionnaires but will look specifically at the amount in dispute, the timetable and the evidence needed.³³ It makes no reference to people other than the litigants. Equally, the Practice Direction on case management claims to explain what the court’s general approach to the matters set out in Rule 26.8 will be but it makes no reference to the broader importance of the case and focuses instead on such issues as financial value, the views expressed by the parties and their circumstances. This evidence suggests that, despite the formal expectation that the collective interest in a case will be taken into account, in practice judgements about the importance of a case have very quickly become conflated with damages claimed. The potential for this to happen was acknowledged by the Woolf Inquiry team but there is a paucity of evidence as to whether case management decisions are being issues-led.³⁴

It would also appear to be the case that judges are reluctant to engage in identifying the collective interest in a dispute where the parties are unwilling or unable to do so. The limited empirical work that has been undertaken on allocation decisions suggests that judicial case managers are far from being proactive about exploring the issues in dispute or making orders that do not reflect the preferences of the parties. In his ethnographic study of the Mayor’s and City of London court published in an earlier issue of this journal, Roberts suggests that judges continue to prioritize litigants’ preferences about how the trial should be conducted regardless of the issues raised in the case. His research suggests that, whilst taking their responsibilities for encouraging settlement seriously, judges in case conferences are at pains to avoid coercive practices and prefer it if substantive decisions are left to the parties. In a similar vein, Seneviratne and Peysner have found that, although procedural judges have a wide discretion to make case management orders and to define and refine issues before trial, these are commonly treated as ‘reserve’ powers. Lawyers in their study claimed that they were effectively allowed to retain control of litigation initiatives by co-operating with the other side in order to offer joint case management proposals.³⁵ Commenting on such trends, Roberts has suggested that we may well have reached a point at which judges have become no more than exemplary ceremonial figures who legitimate other people’s decision making.³⁶

3. An Excessive Interest in Mediation?

The likelihood of cases with precedent-setting potential reaching adjudication has also been affected by the new fervour for alternative dispute resolution (ADR) in the civil justice system. The long-standing settlement orientation of the UK civil justice system, reflected in the costs rule and the payment in rule, has been significantly enhanced by new responsibilities on the part of the judiciary and litigants to avoid trial wherever possible.³⁷ In the post-Woolf environment of litigation, the parties face ever more urgent incentives to settle at key stages of the disputing process including the period before they even bring a claim to the attention of the state. The Practice Direction on pre-action conduct specifies that the parties have an obligation to consider whether negotiation, mediation, arbitration or early neutral evaluation might enable them to settle the matter without starting proceedings.³⁸ Once litigation has commenced, the overriding objective of the CPR requires the parties and case management judges to consider ADR.³⁹ The rules also allow a party filing the completed allocation questionnaire to make a written request for the proceedings to be stayed, or for the court to order a stay of its own volition, while the parties try to settle the case.⁴⁰ Such developments have prompted some members of the judiciary to characterize mediation as a track to the just resolution of disputes that runs parallel with the court system,⁴¹ but it could as easily be argued that mediation is more accurately seen as a new pre-requisite to trial.

These various ways of encouraging mediation have been given ‘a hefty boost’⁴² by Civil Procedure Rule 44.5(3)(a)(ii), which allows the court to take into account the settlement efforts made before and during the proceedings when determining the allocation of costs. This provision represents an exception to the long-standing rule that ‘costs follow the cause’ but, as case law on the powers and responsibilities of the court to promote mediation has evolved, it has become clear that the courts are prepared to take a strong line on the issue. The Court of Appeal first sanctioned a party for unreasonably refusing the court’s invitation to mediate in Dunnett v Railtrack by denying the winner of the case their costs⁴³ and, in Hurst v Leeming,⁴⁴ Lightman J suggested that refusal to mediate has now become a high-risk course to take. Mediation may not yet be compulsory but these cases have clearly had an impact on the propensity to pursue an issue to trail. The Centre for Effective Dispute Resolution has calculated that the use of mediation increased by 35% in the two years following Dunnett.⁴⁵

The fundamental review of the civil litigation system undertaken by Lord Woolf and subsequent discussion of appropriate dispute resolution provided the architects of the reforms with a rare opportunity to articulate the circumstances in which cases should be encouraged out of as well as propelled towards trial. Significantly, while the Civil Procedure Rules and pre-action protocols have much to say about avoiding trial they are silent on the issue of when efforts should be made to avoid mediation and expedite trial. Neither has the burgeoning case law on the circumstances in which it is reasonable to refuse an offer to mediate done much to flesh out the detail of a policy about which cases should reach trial. It has been determined, for instance, that a belief that your case is watertight, that mediation is too costly or that the issues in dispute are too complex for mediation are not reasonable bases on which to reject a referral.⁴⁶ The focus on encouraging unwilling parties to attempt mediation was reinforced in Hurst v Leeming when Lightman J suggested that, when considering whether mediation was appropriate or not, the courts should simply limit themselves to a consideration of whether, viewed objectively, mediation would have a reasonable prospect of success.⁴⁷

The decision in the more recent leading case of Halsey represents something of a retreat from early judicial enthusiasm for mediation.⁴⁸ The case has attracted considerable attention and has been held responsible for what Lord Philips has labelled a ‘dampening effect on the willingness of the parties to agree to mediation’.⁴⁹ Most importantly for present purposes is the fact that Lord Dyson’s judgment contained an expansive list of considerations that should be taken into account in deciding whether a party has unreasonably refused ADR.⁵⁰ In compiling a checklist of circumstances in which it would be unreasonable to refuse mediation he deliberately moved away from the emphasis on the likely success of mediation suggested by Lightman J towards a consideration of the nature of the dispute, the merits of the case, previous attempts at settlement, the likely success of mediation, and the possibility of prejudice and additional costs resulting from referral to it. Moreover, in his discussion of the nature of the dispute, Lord Dyson argued that certain types of case are intrinsically unsuitable for ADR. Whilst acknowledging that these cases are in a minority, his stance provides a welcome opening up of discussion about the sorts of cases in which the judiciary should facilitate trial. Significantly, the judge included in this category those cases in which determining a point of law or binding precedent would be useful.

The Halsey test requires judges to perform a delicate balancing act between criteria that may at times be in conflict. For instance, a small-scale building dispute of the type usually assumed to be suitable for mediation because of its low value might raise an arguable point of law that could be of value in the development of precedent. Settlement may not have been attempted because of a clear desire to test a point of law but the case might still be of a kind where mediation could be of use in resolving the immediate commercial and emotional needs of the parties at a much smaller cost than going to trial. The problem that arises in such cases is determining whether all the other factors to be taken into account serve to ‘trump’ the desire or need to establish precedent. This is a particular problem in the case of small-value claims that are often treated, somewhat paradoxically, as though less likely to raise an important point of law.⁵¹ The task of propelling cases forward to trial will be rendered even more difficult where a point is only arguable, as is almost inevitable in a test case. It is relevant that, whilst recognizing the importance of cases with precedent-setting potential, Lord Dyson explicitly states that ‘borderline’ cases are likely to be suitable for ADR rather than court because the risk of losing is higher.

The suggestion that certain types of case are unsuitable for mediation is often mooted but there is considerable inconsistency amongst commentators about the sorts of cases that should be included in this category. In Halsey, Lord Dyson drew special attention to commercial law cases that, in his opinion, were more likely to involve issues of law or construction.⁵² Drawing attention to the findings of the Commercial Court Working Party on ADR, he stressed the collective interest in the courts producing clear rules in ongoing long-term contracts or for those participating in particular trades or markets. The Government ADR pledge of 2001 has been more expansive and cited cases involving intentional wrongdoing, abuse of power, public law and human rights as examples of cases in which trial was a more appropriate endpoint to litigation.⁵³ These categories of cases were repeated in the more recent Dispute Resolution Commitment Guidance for Government Departments and Agencies of 2011 and in the Ministry of Justice consultation on Solving Disputes in the County Court of the same year, where disputes between taxpayers and the government over tax liabilities and debt were added to the catalogue.⁵⁴ Elsewhere, the Justice Minister Jonathan Djanogly has indicated that disputes involving domestic violence or child protection should not be prevented from proceeding directly to court. There have also been suggestions that cases involving insolvency, significant principles of commercial law on appeal from the Commercial Court, and employment cases are not suitable for mediation at the permission to appeal stage.⁵⁵

Inconsistency of approach is also vividly demonstrated in the government’s own reports on ADR initiatives. Despite the assertion in the Government ADR pledge of 2001 that cases involving a legal precedent or those where it would be contrary to the public interest to settle should be insulated from referral to mediation, the Annual Pledge Reports provide a number of examples in which bilateral and mediated settlement has been used in such cases. Examples include claims for racial discrimination made by an incarcerated prisoner; false imprisonment against several police forces;⁵⁶ a £4 million claim against Her Majesty’s Revenue and Customs relating to the retention of the claimant’s assets in which it was acknowledged that there was no legal precedent to guide the parties;⁵⁷ and a high-profile case of British soldiers being killed or injured in non-combat situations.⁵⁸ A further example given in the 2008 annual report involved the settlement of a complex group action involving claimants who argued they had sustained personal injury as a result of taking part in experiments at the Ministry of Defence site in Porton Down between 1940 and 1989 in which allegations had been made about claimants being bullied into settling their action.⁵⁹

There is also evidence of slippage in the statements of policy makers about the sort of cases that should be insulated from attempts to mediate. This is particularly well illustrated by reference to the evolution of thinking about judicial review. In Lord Irvine’s inaugural lecture to the Faculty of Mediation and ADR in 1999, he clearly recognized that, while alternatives to trial had an expanding role within the civil justice system, administrative law cases and those which ‘set the rights of the individual against those of the State’ should be approached with great care.⁶⁰ Sir Jeffrey Bowman took a similar stance in his Review of the Crown Office List. Although he recommended the introduction of measures to encourage the early settlement of claims, he did not consider ADR to be suitable in the context of public law where it was suggested there is generally little room for compromise.⁶¹ This was also the stance taken by the Government ADR Pledge of 2001 and the first pre-action protocol for judicial review cases, which reflected the widespread view that there were significant risks in the use of mediation in the public law field.⁶² Despite this initial high level of support for the insulation of public law cases, it is noticeable that attitudes towards the issue amongst policy makers have since changed considerably, starting with Lord Woolf’s judgment in Cowl.⁶³ Significantly, a paragraph encouraging referrals to ADR was inserted into the judicial review pre-action protocol when it was re-drafted in 2005 and research by the Public Law Project has demonstrated that some public law practitioners are now experimenting with mediation. Whilst this research indicated that individual claimants may have a considerable amount to gain through mediation, the public law cases settled through mediation often raised issues with a public interest dimension.⁶⁴ The measured approach of Lord Dyson in facilitating the trial of certain cases must also be viewed against the backdrop of increasing interest in the introduction of compulsory mediation. Lord Phillips and Sir Anthony Clarke MR have both adopted a strong stance in favour of such an initiative and the Ministry of Justice’s consultation paper on solving disputes in the county courts has since been even more bullish in its calls for compulsory referrals.⁶⁵

In addition to concerns about the inconsistency of approaches to mediation and trial, a small group of commentators has become increasingly nervous about the extent to which pressure to mediate effectively serves to bar the route to trial.⁶⁶ The Halsey case has prompted a welcome but heated debate about the extent to which it is appropriate to compel rather than just encourage the parties to mediate. Much of the excitement caused by the case relates to Lord Dyson’s concerns that a compulsory referral might be in breach of the right to trial enshrined in Article 6 of the European Convention on Human Rights.⁶⁷ He has subsequently refined his argument on this point by acknowledging that mediation may be seen as an extra step on the way to trial rather than a complete barrier to it. However, his more general observations on the matter continue to be relevant to ongoing debate about the dangers of the journey to trial becoming too arduous. As he has since surmised:

It seems to me that forcing individuals who truly do not wish to mediate, does raise a moral question: can it be right that a person who has exercised his constitutional right to go to court should be forced to sit down with the individual he believes to have wronged him to try and find a compromise … It doesn’t seem to me that it is the role of a court of law to force compromise upon people who do not want compromise. Parties who have a strong case and wish to vindicate that case rather than compromise should not, in my view, be denied their day in court.⁶⁸

It has also been acknowledged that while mediation is not a complete barrier to trial and does not have to result in settlement, it is more likely to. As Lord Phillips has surmised: ‘You can take a horse to water, but you cannot make it drink. To which those in favour of compulsory mediation reply, “yes, but if you take a horse to water it usually does drink.” ’⁶⁹

4. Appealing to the Collective Interest?

Predictably, it is much more common for the collective interest in private disputes to be discussed in more detail in the context of appeals.⁷⁰ Drewry and colleagues have argued that the modern appellate system is intricately linked with the idea of the collective good since the modern development of stare decisis is synonymous with the growing acceptance of the rule-making role of judges in the 19th century. As Lord Woolf has expressly acknowledged in relation to the civil justice system:

Appeals serve two purposes: the private purpose, which is to do justice in particular cases by correcting wrong decisions, and the public purpose, which is to ensure public confidence in the administration of justice by making such corrections and to clarify and develop the law and to set precedents.⁷¹

The presence of a leapfrog procedure that allows a case to be diverted direct to the Court of Appeal from the county court and to the Supreme Court from the High Court if a case raises an important point of principle or there are conflicting authorities further reinforces the commitment of the litigation system to facilitating precedent setting.⁷²

Despite this confidence in the importance of appeals, recent reforms to procedures can be traced to a general feeling on the part of the judiciary that too many cases without merit were being heard by the Court of Appeal.⁷³ As a result, nearly all civil appeals now have to go through a permission stage and second appeals are expected to become a rarity. There has also been a shuffling around of the courts where appeals are heard with a general trend towards a reduction in the number of appeals heard in the civil division of the Court of Appeal.⁷⁴ Whilst these changes would appear to suggest a reduction of interest in cases with precedent-setting potential, the reforms can also be interpreted as being predicated on the idea that fewer cases do not necessarily mean fewer precedents. Indeed, it could be argued that the limitation of rights to appeal is designed to make sure that judicial time is freed up for consideration of the most important cases.⁷⁵ The permission stage is now used to ensure that cases that proceed to appeal are those with a ‘real chance of success’ or that there is ‘some other compelling reason’ why an appeal should be heard.⁷⁶ Whilst the former test might prove difficult for an aspiring precedent seeker to satisfy because test cases inevitably involve a certain amount of uncertainty, the second leg of the test appears to offer considerable scope for the need for precedent setting to be taken into account.⁷⁷

This rationalization of appeals may make it much more likely that cases with precedent-setting potential are more likely to be directed to the appropriate place for consideration but three outstanding problems with the system remain relevant to this essay. The first is the irregular use of the leapfrog procedure that we might expect to be used in a higher proportion of cases in a newly streamlined and more efficient appeals system. It remains noticeable that the number of cases that reach the Supreme Court using the leapfrog procedure remains very small. In 2009 no applications for leave to appeal from the High Court of England and Wales were received by the Supreme Court and in 2010 just two of the total 247 applications attempted this route. This has led some commentators to suggest that the procedure is unpopular with the superior courts and that it fails to cut out a tier of appeal in all but the most exceptional cases.

The second problem is there has been little curiosity amongst British academics about how cases are selected as suitable for appeal. While we can surmise from judicial statistics that the Supreme Court hears approximately 90 cases per year,⁷⁸ it is unclear how decisions are made about what to include in this informal quota. This lack of interest in case selection compares unfavourably with the extensive American literature on the topic. Whilst this interest in the issue can be explained in part by reference to the fact that judicial appointments in the United States are overtly political, the debate raises critical issues about the importance of the power to deny further consideration of a case and influence applications for third-party interventions.⁷⁹

A third problem is the introduction of a mediation scheme in the Court of Appeal. Lord or Lady Justices considering an application for permission to appeal are now expressly required to consider whether the case before them is suitable for mediation⁸⁰ and several post-permission stage mediations have now taken place. The fact that mediation is being conducted after public resources have been allocated to determining that it is suitable for further consideration by a senior court seems particularly perverse when one considers the issue from the perspective of the collective interest in private adjudication. Genn’s report on the scheme demonstrates that 33% of the 267 parties encouraged to consider mediation refused on the basis that judgment was required for policy reasons or the appeal turned on a point of law. Significantly, her research into the operation of the scheme suggests that the categories of cases considered unsuitable for mediation in the Court of Appeal did not include those where there is a need to establish precedent.⁸¹

5. Ongoing Shifts in Policy Debate

Much of the discussion contained in earlier sections of this article could be seen as flowing from the fundamental shift in thinking about civil litigation heralded by the Woolf reforms of the late 1990s. In addition to increasingly pro-active approaches to settlement, a taste for the ‘hollowing out’ of litigation systems is discernible with increasing number of disputes being channelled towards other forums at national and international levels.⁸² There have also been more recent transformations in the official discourse relating to the collective interest in adjudication and precedent. In an example of the way in which the discourse of the ‘Big Society’ is beginning to manifest itself in discussions about the civil litigation system, the Ministry of Justice is orientating policy statements away from an emphasis on the need to avoid trial towards a focus on the need to avoid litigation. Thinking about the function of the civil justice system appears to have shifted from an emphasis on improving the efficiency and effectiveness of the civil litigation system during the Woolf reforms towards a focus on the active management and prevention of disputes by the parties themselves. By way of example, the Review of the Civil Justice Council by the Ministry of Justice (2008) asserted that its vision for the civil justice system was one that enabled disputes to be prevented where possible and resolved as early as possible if not.⁸³ Rather than envisioning civil justice as something that promoted the public airing of disputes offered up to it, the system was seen as ‘the totality of the means by which civil disputes are prevented or resolved, including the relevant law, procedure, and techniques for avoidance and resolution’. Employing the now familiar rhetoric of choice and empowerment, Jonathan Djanogly has also opined:

Why get involved in expensive long-winded and often stressful litigious process, and have your dispute decided by someone else, when you could remain in control and shape the outcome through mediation? We want to provide more choice for people, providing better access to effective and proportionate ways of resolving disputes. They must include people being able to resolve their own disputes as much as possible, without having to go to court or spend a fortune on legal representation.⁸⁴

More recently still, the government’s Dispute Resolution Commitment of 2011 has asserted that it is keen to encourage people and businesses to take responsibility for their own disputes rather than turning to lawyers and judges to resolve the issue. It goes on to outline an undertaking on the part of government to be ‘proactive in the management of potential disputes and in working to prevent disputes arising or escalating in order to avoid the need to resort to the use of formal mechanisms wherever possible’.

The implication of this shift is that pursuit of a case to trial should increasingly be seen not just as an atypical occurrence but a deviant act by disputants incapable of acting responsibly and resolving their dispute in the private sphere. We may continue to identify the judiciary as a branch of government or vital institution in the public sphere but it is important to recognize that the civil litigation system now displays many of the features of a private dispute resolution institution with a strong preference for resolving disputes in private and a minimal interest in the public airing of important legal debates. As support for civil legal aid diminishes and court fees increase, civil justice can increasingly be viewed as a service used only by those prepared to pay for it. Where once the state provided the costs of courts and judges from the public purse, these are now paid for by litigants’ fees and the civil justice system makes an impressive profit from our disputes.⁸⁵ The diminishing respect for public adjudication in the civil justice arena has been much lamented elsewhere and my concern here has to been to call for more extensive debate about the implications of these shifts on the collective interest.

6. Conclusion

When one begins a detailed search of civil litigation it is apparent that there are small but important pockets of resistance to the general trends towards the individualization and privatization of disputes discussed above. Mention has already been made of the rise of the concept of the super complaint but radically different attitudes towards the collective interest are also discernible in public ombudsmen schemes where considerable attention has been paid to the ways in which individual cases can be used as evidence of more generic problems. Not only do the ombudsmen have a long-established tradition of publishing generic standards that draw on their experience of problems raised in particular disputes but the Parliamentary Commissioner has made creative use of Special Reports to circumvent issues of standing. The recognition of the ‘fire fighting’ and ‘fire watching’ role of ombudsmen by academics together with the on-going debate about whether the Parliamentary Commissioner for Administration should be able to mount investigations of her own volition demonstrates how very differently the responsibilities of public adjudication can be understood.⁸⁶

Elsewhere, there have been shifts in thinking about standing in judicial review as the administrative courts have adopted a more liberal attitude towards the protection of the collective interest in public adjudication. Whilst still in its infancy, a call for a more informed debate about the issues, and problems involved with, third-party interventions in public law cases is also evident.⁸⁷ There have also been significant inroads in the development of group actions in the form of representative actions⁸⁸ and opt-in group litigation orders that increase the likelihood of claims that are not independently economically viable being instigated and pursued for longer.⁸⁹ It seems significant that these reforms have occurred in the immediate aftermath of the Woolf Report since one way to understand these shifts is to interpret them as a recognition that the severe rationing of public adjudication for individuals calls for more radical approaches to pursuit of the collective interest. In a passage of his final report, which is rarely, if ever, alluded to, Lord Woolf also gave some recognition to this argument when he proposed that a new type of public officer or body, such as the Law Commission, Treasury or Official Solicitor, funded by the public purse, could play a role in taking cases forward on appeal where the law needed to be developed.⁹⁰

In this article I have attempted to draw attention to the fact that these innovations must be understood in the context of a dominant and developing ideology of civil justice that does not value highly the collective interest in private dispute resolution. Symbolic shifts in thinking about the trial promoted by policy makers hint at the conceptualization of disputes as evidence of a deep malaise suggested by ‘compensation culture’, over-reliance on the state, spurious claims, and greedy litigants and lawyers. For some commentators, this heralds an era in which trials have been displaced from the central role traditionally assigned to them in the common law. These shifts have manifested themselves in a number of ways but it soon becomes clear that this new settlement orientation provides us with much more limited scope to affirm the importance of the trial in the architecture of the legal system. They suggest a failing faith about the role of adjudication as a vehicle for reform or a societal doubt about the role of civil justice.

This article undoubtedly raises more questions than it is possible to address given the constraints of space. What motivates the selection of particular cases for consideration by the Supreme Court? Is there a bias towards certain types of cases which leads to uneven development of the law? Does the recent reform of legal aid render the likelihood of challenges to laws which impact on the most disadvantaged in our society unrealistic? If the courts are to be constrained in their ability to develop the law, are there other bodies more capable and able to fulfil that task? Does the emergence of a regulatory state or legislature elected by universal suffrage inevitably lessen the role of the judiciary? All of these questions are deserving of more scrutiny but must surely be considered within the context of constitutional principles rather than cost-saving incentives.

Those of us expressing concern about these shifts in ideology are easily marginalized as adjudication romanticists. But even if one sets to one side the cultural significance of the trial as a community-enhancing ritual or vehicle for change, neo-classical economists have made clear that markets are in dire need of precedent if they are to function efficiently. In their challenging exploration of the precedent-setting possibilities of private adjudication, Landes and Posner conclude that state courts are the only forum in which there is an effective motivation to produce precedent for the good of all and where the principles established in a judgment are binding on future generations. Viewed through this perspective, precedent setting is not placed in opposition to the libertarian preference for private ordering but is seen as facilitating more efficient private ordering in the shadow of the law. By distributing bargaining chips to disputants during pre-trial negotiations, precedent setting allows the litigation system to avoid becoming clogged by a myriad of single instances of particular categories of problem, just as mediation does. But, if precedent is seen as an economic good as well as a social one, this raises the question of how efficiently we produce it.

It would appear from the arguments presented here that our civil litigation system is actually very inefficient in producing incentives for individuals to pursue litigation in ways which promote both private interests and the public good. It is likely that this produces precedents that serve particular types of disputants who are able and well funded enough to negotiate the litigation system to trial. The answers to the questions I have posed are not necessarily more litigation, more access to trials or better funding of cases. Future debate could usefully move away from the relative merits of adjudication, mediation, and settlement to the much more important issue of how we determine the ways in which the common law needs to be developed and how public funds can be used to facilitate such evolution. Development of the third-party action is a clear way forward but thinking about the cases that need this support has to move away from limiting debate about its use in the public law arena if we are to acknowledge that tort, contract and family law are equally in need of precedent setting. If, as has been suggested, the private market of self-motivating litigants systematically under-produces rules, it could be argued that we should now turn our attention to the question of how we could systematically produce them.