HAMLYN - College of Social Sciences and International Studies ...

Civil Justice
procedural judge. As Lord Woolf said in his Final Report,
"management decisions are pre-eminently matters of discretion
with which an appeal court would seldom interfere". 61 So the
move to judicial case management not only greatly increases the
risk of inappropriate decisions resulting from the judge's lack of
familiarity with the case, but equally increases the volume of
low-level, inconsistent discretionary decisions that are in practice
unappealable. That again seems to me a step backward for
fairness.
Inconsistency of approach by the judges is a serious problem
in the small claims courts. And the vast increase in the jurisdiction
of these courts correspondingly increases the impact of the
problem. The problem of variation in how the judges conduct
small claims cases has been highlighted by Professor John
Baldwin's research. The difference is not just a matter of style. It
affects the extent to which the judge is prepared to help the
parties to produce evidence or to act as his own expert when no
relevant evidence is preferred by either side. 62 It applies equally
to whether the judge feels constrained to apply the law. Baldwin
reports that only a minority of the 33 district judges he interviewed
thought it was their duty strictly to apply the law. The
majority said they thought they were entitled to disregard the
law if in their view strictly applying it would produce injustice. 63
This is strong meat. In his Interim Report, Lord Woolf said "it is
questionable whether such differences are acceptable even in a
jurisdiction limited to £1,000" and that any inclination to follow
common sense rather than the principles of law should be
resisted in the interests of consistency. 64 Baldwin, following the
same line of thinking, observed,
"Decision making can easily become inconsistent, capricious, uncertain,
even biased, and in the process, the substantive legal rights of
individuals may be undermined. Moreover, while flexibility is doubtless
desirable in dealing with small claims, it can create uncertainty
for lay litigants and their advisers." 65
61 Final Report, p. 154, para. 5. See to like effect Biguzzi v. Rank Leisure pic [1999]
4 All E.R. 934 at 941, CA.
62 Baldwin reports that in 91 of the 109 small claims cases observed, no witnesses
at all attended: ("Small Claims Hearings: the 'Interventionist 1 Role Played by
District Judges", Civil Justice Quarterly (January 1998), pp. 20, 28.
63 ibid., p. 29.
64 Access to Justice, Interim Report, (1995), p. 109.
65 op. cit, n. 62 above, at p. 31.
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