By Hon Russell Fox AC QC
Publisher: Cavendish
Price £45
Litigation lawyers are always concerned with reform of civil procedure. The Woolf reports were hardly the first word on the subject, and will certainly not be the last. This book is one eminent Australian lawyer’s contribution to this on-going debate. It presents an alternative plan for a reformed justice system, both civil and criminal.
The author is well-placed to offer such a comprehensive vision. The Honourable Russell Fox is a retired judge of the Federal Court of Australia and former Chief Judge of the Supreme Court of the Australian Capital Territory. He brings a wealth of experience to this book, from both sides of the bench, as well as years of research of the subject during his retirement. The result is a detailed plan of action.
Justice Fox’s central idea is that the legal profession needs a change of ethos that gives greater value to co-operation over aggression. He adopts the now-familiar model of the litigant
as consumer of legal services, and from this he develops some interesting lines of analysis. For example, his assessment of the use of court fees in different jurisdictions is particularly valuable. He also makes many practical suggestions for the better use of court resources and for ways to shorten the length of hearings.
The author’s plan is a nearly comprehensive one: descending into detailed reforms for the taking of witness statements, with ways to cut down on the expense and delay of having statements prepared by solicitors and then settled by counsel. Perhaps
surprisingly, the author does not support the
extension of case management powers or sanctions to bolster case management discipline. Lord Irvine’s foreword to the book provides a strong and convincing opposing view.
The book’s most valuable contribution is probably in the area of alternative dispute resolution (ADR). The author sees ADR as central to the system of civil litigation. He proposes a state-funded conflict resolution service alongside the courts, and the book gives numerous examples of programmes in different jurisdictions, drawing lessons from the successes or failures of each.
Particularly impressive is the way in which he links his detailed reform plan to the basic goals of a litigation system: justice; truth; the saving of cost; and increasing of access. To his credit the author does not take any of these for granted. His chapter on the role of truth is particularly insightful, and presents valuable comments on the place of truth as goal or standard of the litigation system.
Justice Fox presents strong arguments to support his plans, and has an impressive array of academic and practical support for his ideas. The only criticisms are minor: the author has a tendency to be so convinced of the merits of his arguments that he sometimes makes broad comments that do not give full credit to the complexity of issues (such as advocating the removal of most civil and criminal exclusionary evidential rules on the basis that “in the absence of exclusionary rules, evidence can be given naturally”, (page 131)). Similarly, there is a tendency to downplay the role of views contrary to the author’s own, such as discussing writings on the importance of truth as a goal in the litigation system, where the author could have devoted more space to the trenchant opposing views of extreme pro-client ethics writers such as Professor Monroe Freedman.
These criticisms are small in comparison to the high overall quality of the ideas and arguments presented in this book. It is valuable reading for lawyers interested in reforms of the civil and criminal justice systems. It is clearly an important subject, and merits the reader’s consideration.
Jonathan Auburn is a barrister at 4-5 Gray’s Inn Square and a former assistant to Lord Woolf. His own book, Legal Professional Privilege – Law and Theory, is published by Hart Publishing.
