The idea of proportionality in dispute resolution

Abstract

This article compares the ways in which the idea of proportionate dispute resolution has been dealt with in three recent reports: Lord Woolf's Reviews of the Civil Justice System (1995 and 1996), the Department of Constitutional Affairs' White Paper on ‘Complaints, Redress and Tribunals’ (2004) and the Law Commission's Issues Paper on ‘Proportionate Dispute Resolution in Housing’ (2006). The first of these reports adopts a ‘top‐down’ approach in which procedural judges allocate cases to one of the three streams in terms of the size of the claim, its complexity and its importance while the second report takes a ‘bottom‐up’ approach in which complainants decide what sort of remedy they want and, thus, what set of procedures they should use. The third report suggests that there is a ‘third way’ and the article examines the principle of ‘triage plus’ and the ways in which this principle could promote informed choice. It analyses the Law Commission's proposals for implementing ‘triage plus’ and concludes by questioning whether policy makers are ready to make a reality out of their enthusiastic embrace of the principle.

Keywords:

• proportionality
• dispute resolution
• court proceedings
• tribunal proceedings
• housing problems, social welfare problems, ‘triage’
• justice
• choice
• CLACs and CLANs

Acknowledgements

An earlier version of this article was presented as a seminar at the Norwegian Institute for Social Research (NOVA) in Oslo on 17 January 2008. The author would like to thank Professor Bjørn Hvinden for inviting him to Oslo and those who attended the seminar for their comments. He would also like to thank the editor of this Special Issue of JSWFL (Dave Cowan) and two anonymous referees for their very helpful comments on an earlier draft of the article.

Notes

1. For example, a well‐known High Court Judge, Mr Justice Lightman, who is a strong supporter of the Woolf reforms, has warned that their positive impact may have been cancelled out by the enormous increase in legal costs, which can no longer be afforded by the mass of the population (see Lightman, 2003).

2. The most important of which were the removal of responsibility for tribunals from their ‘sponsoring departments’, the establishment of a unified Tribunal Service as an executive agency of the Ministry of Justice, and the replacement of the Council on Tribunals by the Administrative Justice Council, which – to take account of the sensitivities of the Employment Tribunals Service – was subsequently re‐named the Administrative Justice and Tribunals Council, with responsibilities for overseeing administrative justice as a whole. For an account of these changes, see Adler (2006, 2008).

3. Many years ago, in the course of undertaking research on the social impact of diligence (the term used in Scots Law to refer to the legal procedures that creditors may use to enforce the payment of debts due under court decrees), I raised the same question about the Scottish Law Commission's role in reforming the law relating to debt enforcement procedures, which also raised important issues of social policy that, in my view, were outside the Commission's competence (see Adler 1986).

4. Its report, Renting Homes, (Law Commission 2003), and the accompanying Rented Homes Bill, set out, for the first time, a coherent scheme for the legal regulation of rented homes.

5. The Issues Paper also considered the actual and potential contributions of management responses, ombudsmen and ADR, to the resolution of housing problems, and, for those disputes which cannot be resolved using these procedures, the relative merits of generalist and specialist modes of dispute resolution and of courts and tribunals. However, these issues fall outside the scope of this article.

6. This is relatively straightforward in breach of contract cases, where the amount claimed by the plaintiff is difference in value between what he or she was supposed to receive and what he or she actually received, together with an appropriate amount of interest. It is rather more complex in tort cases, e.g. those involving medical negligence and personal injuries, where the amount of damages sought can include the cost of repairing or replacing lost or damaged items, loss or reduction of earnings, future care costs, and compensation for pain and suffering.

7. An alternative view to the one put forward in this article is that, although the White Paper embraced the principle of proportionate dispute resolution and stressed the importance of asking what people want, it did little to explain what this might entail in practice. On the other hand, the Law Commission's work on housing disputes was really a case study of what the principle of proportionate dispute resolution might look like in practice. However, because they reflect the same value position, they represent the same approach. Thus, there are really only two approaches to proportionality rather than the three that are identified in this article. Readers of this article are, of course, free to decide which of these two views they find more convincing.

8. CLANs differ from CLACs in that they comprise a variety of providers (rather than a single provider), who agree to provide a shared service for clients.

9. The evaluation will be carried out by LSC's Legal Services Research Centre.