Pragmatism and Theory in English Law - College of Social Sciences ...

72 The Strengths of the Pragmatic Tradition
by the parties, even though in strict theory they are just preliminary
or holding decisions which could be overturned if
the parties went to trial, and all the evidence was given
orally and subject to cross-examination. 49 Of course, this
willingness to accept an interlocutory decision as final is not
uninfluenced by another powerful consideration—namely
the cost of litigation. Some people may be concerned that
citizens may be deterred from vindicating their rights
because of the possible cost, and I do not for a moment deny
that there are some kinds of cases in which this is a genuine
worry. But in the cases I have presently in mind, where parties
accept interlocutory orders as final, the impact of the
rules as to costs and the legal practice on such matters
seems to me again, as I have already suggested, to be a sign
of pragmatic strength in the legal system. Full-scale litigation
is a very costly exercise, especially in the High Court,
and I see no reason at all why parties should not be encouraged
to settle for a sort of second-class type of litigation, at
lower cost, if they find that adequate for their purposes.
Much of the practical strength of the litigation process in
English law undoubtedly stems from the adversary procedure,
although it is almost essential to the successful operation
of this procedure that the parties should be
represented by able barristers, as of course they usually arc.
The adversary procedure may itself be open to challenge on
the ground that the true function of a trial ought to be to
ascertain the truth rather than merely to settle a dispute
between two contending parties, and it may well be that in
criminal procedure this docs make a profound difference to
the results of cases of many kinds. But it seems doubtful
whether in most civil cases today a judge often feels that he
v> See as to this Fellowes v. Fisher [19761 Q.B. 122.