Published in David A Frenkek Ed : Role of Law, Human Rights and Social Justice , Justice Systems, Commerce, and Law Curriculum pages 161-182: published in Greece by the Athens Institute for Education and Research 2017.
The overriding objective of the Civil Procedure Rules 1998 is that cases should be disposed of justly and at proportionate cost. The English and Welsh civil justice system has struggled to deliver this objective, especially when it comes to keeping down costs.
This article shows that ‘justice’ and ‘proportionality’ are both umbrella terms. One of the values sheltered by the term justice is that of accuracy of decision making. This sheltered value is the primary one which underpins all others. This explains why the system struggles to contain those costs which relate to making the facts certain in order that the court may make the correct decision. This article therefore argues that the accuracy value should be made explicit within the overriding objective.
There is no single view of what is and is not accurate. This article examines Zuckerman’s view concerning the quantum of accuracy and demonstrates that it would be possible to have two different decisions on the same case both of which could be described as accurate dependent upon the amount of information placed before the judge. Provided that the minimum threshold of accuracy is crossed, different standards of accuracy may be applied depending upon the nature of the case without a decision being thereby rendered unjust.
The procedure and rules relating to witness statements show how the accuracy value and economic proportionality are in conflict. The existence of such a general conflict of values is argued by Zuckerman. This article goes behind Zuckerman to important thinkers on the question of value pluralism to show that there is often more than one value in operation, that values clash and that it can be difficult to choose between them for lack of a common scale of measurement.
The answer to the difficulty raised by the lack of a single metric may be found by approaching the question of the balancing of values using Raz’s genre-dependent evaluation. By noting the differing types of litigation e.g. fast track and multi-track it becomes possible to envisage them as different genres of litigation. That established, it can be seen that the values of justice and proportionality need to be present in different mixtures according to the particular genre under review. Thus in larger cases the accuracy value will assume more prominence, but in smaller cases economic proportionality will have the higher profile. In no case would the accuracy value be compromised.
KEY WORDS: Civil procedure, Justice, Proportionality, Overriding objective, Value, Incommensurability, Isaiah Berlin, Accuracy, No single scale of measurement, Genre-dependent evaluation, Joseph Raz.