01 February 2018
These have been worsened by a growing reluctance among successful QC's to take the job on, as the pension terms are now much less attractive. Also, the retirement age for senior judges has been reduced from 75 to 70, which has also driven out some very competent senior judges.
This has contributed to growing pressure on judicial time, and lengthening waiting lists. Before the 1996 Woolf reforms, waiting for a trial 2 or even 3 years was not uncommon, and we may be going back that way. There is little sign that the chancellor has any spare money to divert to the legal system.
There are 2 obvious non-cash ways that this situation could be improved, by making greater use of mediation and arbitration.
First, there could be greater emphasis on requiring the parties to mediate their differences. Some will do so cynically, but in many cases once the parties are talking, I’ve seen the dynamic of the mediation process take over. It’s always worth a try.
Second, we may need to consider a reform that automatically implies an arbitration clause into commercial contracts. This could work like the adjudication clause in construction contracts. There are excellent procedural Rules available from the Chartered Institute of Arbitrators, an excellent statute (Arbitration Act 1996), and a large cadre of potential Arbitrators who cut their teeth as construction adjudicators, and understand the need for speedy and effective dispute resolution.
Things may have to get worse before they get better, but if English justice is to retain its gold standard, radical thinking is needed.