“CIVIL JUSTICE IS A PUBLIC GOOD”: SPEECH BY LORD JUSTICE GROSS: WHY WE ARE WORKING IN THE “CINDERELLA” SECTOR

This morning I am encouraging you all to read the speech of Lord Justice Gross given to the London Common Law & Commercial Bar Association Annual Lecture. It is a wide-ranging speech, the essential theme is that Civil Justice is a public good. This requires a high standard of judges, fair access to the legal profession and a proper understanding by the government of the central importance of the civil courts. A central theme of the speech is that “the Rolls Building is not an island”, for commercial law to flourish it is essential that civil justice is maintained and fostered at every level.  Reform of the courts and procedure is a necessity, but should be measured against the simple test “Does it improve the civil courts as a pillar of democracy?”.

A SELECTED EXTRACT

“(I) Civil Justice is a public good

4. Let us be clear as to our starting point. The State has two primary duties: Defence of the Realm and the provision of a justice system. If the State succumbs to its external enemies, all is lost. If the State does not uphold law and justice, no other rights can be enforced, or entitlements enjoyed.

5. The provision of Civil Justice by the State is an integral part of that second duty. The provision of civil justice is a public good, securing the rule of law, not simply another public service. Unfortunately, it has not always been seen that way; too often, it has been treated as a Cinderella, ranked somewhat lower in the State’s priorities than the criminal or family justice systems, even though it was the means by which the other systems were to a significant degree funded. This acute problem, repeatedly observed by members of the senior Judiciary over the past decade, rests on a failure to fully appreciate that the provision of an accessible and effective civil justice system is an integral part of the delivery of one of the State’s primary duties: the provision of an effective means through which law and justice can be upheld – a system which enables litigants to vindicate and enforce their legal rights….

(The judge then discussed the impact of the Supreme Court decision in the Unison tribunal fees case).

8. On its own that would be sufficient to demonstrate how the civil courts provide a public good. Matters do not, however, end there. Through the civil courts explaining and developing the law, civil justice provides the framework within which citizens and government can order their affairs and settle their disputes, as well as providing the means through which that framework of law can be developed through the common law method.10 And it provides the means by which disputes can be avoided: the deterrent effect of the knowledge that enforcement of rights is within the reach of all our citizens is a fundamental means by which we promote compliance with rights and obligations in the first place. The public good that the civil courts provide is therefore one that promotes the rule of law in a number of different, although related, ways. It is, as Lord Diplock expressed it, a hallmark of every “civilised system of government”.

9. My starting point then is simple. Civil justice is a public good. It must be understood to be so and treated accordingly. A straightforward test for reforms proposed or made in this time of change is this: does the reform improve our ability to deliver that public good? Does it improve the civil courts as a pillar of democracy? “