Rebranding civil litigation

This year marks the twenty-first anniversary of The White Book and the ‘revolution in civil litigation’.

In 1994 the Lord Chancellor, Lord Mackay of Clashfern, directed the Master of Rolls to prepare a report on access to justice issues in the civil justice system and on 26 July 1999, Lord Woolf published his Access to Justice Report 1996. 

The main principle of the ‘revolution’ was to challenge the inequality, unfairness and injustice of the system and a new set of procedural rules were produced by The White Book Service. 

In 1999, when the makeup of the judiciary and the advocates who appeared before the High Court bench was entirely white, it did not cross anyone’s mind that the symbol of the revolution, a ‘White Book’ went against the very notion of the new rules and affirmed a sense of exclusivity, as opposed to inclusivity in practising civil litigation. But now in 2020, on the heels of #BlackLivesMatter can we still have a procedural text known as The White Book?

There has been little change in the ethnic diversity of the senior judiciary since the Woolf reforms, which have also not brought any systemic change to access to justice. But the dial is moving, and the judiciary needs to acknowledge there must now be a change to the status quo, especially when relations between the state and the citizen are at an all-time low.  

Many, including the former Supreme Court Judge Lord Sumption, are questioning the way the law is being made. Sumption made the acclamation that “there is a civic obligation to comply with the law, only so long as it has been properly made” during a webinar with Joshua Rozenberg on democracy and the rule of law in the age of covid-19, organised by the Bingham Centre and Prospect Magazine. In the face of such challenging times, the judiciary has to be at the forefront of the response and must retain its important role in society.  

The formation of a new specialist list, the Civil Rights Court, would address the gaps in the current system and be seen as the beacon to upholding our societal rights to equality, fairness and justice.

The arguments presently being made against judge-only trials in the Crown Court, must equally apply to those who bring civil claims against the state. Anyone challenging police brutality, unlawful detention or discrimination comes before a case-hardened judge, whose background may have included acting for state bodies.

At present, it is only claims for false imprisonment and malicious prosecution that can be heard with judge and jury, but it is envisaged under the new system, that members of the public would play a central and active role in delivering justice in all claims against the state.

We need to learn lessons from the Lammy Review, which though focused on the treatment and experience of black and minority ethnic defendants in the criminal justice system, shines a light on the disparity between those who seek justice and the judiciary.

An alternative would be to set up community courts, in areas of the country where there are issues around civil liberties and breaches of human rights. Similar to the Nightingale Courts, the community courts could utilise unused buildings and space in a specific area and be seen as a forum to hold the state to account at a local level. The plan to move away from judge-only trials in civil rights cases is radical but a necessary step to maintaining public confidence in the judiciary. But the first mission must be to find a more suitable name for the civil procedural rulebook.  

Sophie Khan is solicitor-director at Sophie Khan & Co sophiekhan.co.uk