The Judiciary - they’re only human

by Francis Miller

I’m not complaining. I’m not seeking change. I seek only understanding.

In any event, it is no use complaining about human nature, because it is what it is and we are all part of it. Nor is it any use seeking change unless one can offer something which is going to be better than that which one seeks to change. However, seeking understanding has been the legitimate work of philosophers for thousands of years so there is no reason why the hoi polloi of the community specializing in conflict should not try to do the same.

In seeking to understand the actions of the judiciary, I can make some assertions which do not require any specific proof. For example: it can be said that there is much conflict in the output of the judiciary and that this conflict results in much confusion and causes great cost to many within the jurisdiction. Indeed, as day follows night and night follows day, that statement is true beyond question; but if proof were required I should be spoilt for choice of examples, so I won’t attempt the exercise. Nevertheless, because I am writing for Arbitration News & Views on this, the grand 50th issue, I shall pay respects to a recent contribution by Peter Horne (see issue 48, p. 19) where he stated: ‘?What do you do when, part way through an article, the Court of Appeal hands down a judgment which shows that your basic premise may be wrong?’

Many of us have had our basic thinking challenged by the publication of a judgment of one court or another, but Peter Horne was not referring to his own unadulterated natural thinking. He was referring to premises which had been shaped by s.5 of the Arbitration Act 1996 and s.107 of the Housing Grants Construction and Regeneration Act 1998; and also a raft of judicial decisions which he had been following. In short, Peter Horne - a man trained to think in lawyers’ terms - is claiming that the pathway of reasoning which he had been carefully following, based upon detailed research of Acts of Parliament and court judgments, was suddenly and significantly changed. Changed, that is, by another judgment, namely: by the Court of Appeal.

In seeking an understanding of the output of the judiciary which causes the confusion and such high cost to many within the jurisdiction, let us clear away the dross so that we can get a clearer view of the purity of the metal that lies beneath. Firstly, we discover that the dross represents the greater content by far of the judiciary’s work; indeed, like most things in life the bulk is the uninteresting and ordinary part of any activity.

This bulk of the activity of the judiciary is the determination of facts and the application of well established law. Indeed, this great bulk of activity flows relentlessly through the County Court system in particular, but also to a relatively significant extent through the other courts below the House of Lords and the Court of Appeal. All of this great bulk can be cleared away from our attempts to understand the output of the judiciary which causes confusion and cost to those within the jurisdiction, because for practical purposes the effect of this ―activity bears down only upon the parties to the action. In all, we may say, on a rough ratio of some fifty-five million to two, that the bulk of the output of the judiciary is relevant to the two, i.e. the parties, and irrelevant to the fifty-five million, i.e. all those within the jurisdiction of the courts.

Indeed, as for the remainder of those within the jurisdiction – i.e. those who are not the parties to the action – the reported facts of the case are simply the support for the platform for launching the points of law which the judge finds it relevant to record. Beyond that, the facts are not really relevant to anyone but the parties and those with a nosy instinct. For practical purposes, as far as the remainder of those within the jurisdiction, facts can be determined by anyone with the authority to do so without any detriment to anyone who is not a party to the action – for example, the parties may agree the facts (even though their agreement may be quite wrong); the judge may decide the facts (always accepting that any decision is based on less than adequate information because there is no need to make a decision where the facts are not in doubt); juries made up of ordinary people decide facts (but mostly in non-civil matters). Anyway, the point is that the whole process of deciding facts is part of the dross to be removed when seeking to understand the effect of the output of the judiciary upon everyone within the jurisdiction.

In seeking an understanding of this matter, it is also, albeit with certain questions which I cannot deal with here, possible to clear away all procedural law as part of the dross. As with facts, the procedural law bears down mostly upon the parties to the action as opposed to all those within the jurisdiction, namely: because procedure only affects those who take a matter to court, whereas everyone is bound by the substantive law and must regulate their lives accordingly.

It is the smaller part of the output of the judiciary which causes the problems which are being address in this article. This is the output which is based upon the case of the parties to the action, but which is relevant to some fifty-five million within the jurisdiction. This is the part of the output where there is much conflict which results in much confusion and causes great cost to many within the jurisdiction. This is the part where the judiciary tells us the substantive law.

What can be done about it?

Very little, because the role of the judge has to be undertaken by human beings. However, it might help greatly in the understanding of the situation if the judges from top to bottom were to declare publicly every now and again that they are the seed corn for all that is unsatisfactory with the law and the legal system. I do not seek a symbolic declaration like ‘the captain of the ship is always to blame when something goes wrong’. Nor do I seek an opportunity to peer occasionally into the closed chambers of the judiciary itself, where I can imagine such confessions about the seed corn of litigation’s problems are the part of everyday chatter. Rather, I seek a genuine heartfelt acceptance to be conveyed to all those within the jurisdiction that when judges try to make clear the law as individuals they are bound to make it unclear collectively and thus cause great confusion as the ladder of developing law is slowly climbed, plagued always by a few snakes anxiously awaiting to take it all back to square one. Moreover, I seek a humble acceptance by the judiciary that all of this feeds the opportunity for all the things which people in high and low places alike continually complain about.

I think it would be cathartic for everyone to understand that the judges are human beings who are undertaking a great burden in society and that judges are trying to do virtually an impossible job and inevitably continually falling short of the ideal. In trying to bring about this understanding, it seems to me that the judiciary collectively should call upon society to accept the plain truth of the matter. At least, even if such action would not improve the situation or the understanding, it would be preferable to the oft heard message that lawyers and parties are to blame for the ills of the system.

Francis Miller