The LCJ has warned that the law may stagnate when courts are replaced by arbitration. But how can he help justice reform?

In a speech earlier this month, the lord chief justice Lord Thomas made a strong case in favour of using the court system over arbitration.

He pointed out the danger that law can ‘ossify’ when arbitration takes the place of the courts, because there is no opportunity for case law to develop and evolve, keeping the law in tune with, for example, the commercial world.

Thomas would like to see a widening of the scope for appeals from commercial arbitrations to be heard before the courts, for this very reason – though this would surely undermine the finality of arbitration.

The lord chief justice made convincing arguments about how the court system should not just be seen as a service to resolve disputes between individual parties; even if that is how government might want to view it. It is much more than that; it is an essential pillar of democracy, with a key role to play in the development of the law – without treading on the toes of parliament, of course.

That is all undeniably correct. But from the point of view of the individual person or company seeking to enforce or defend their rights, it is also irrelevant.

Parties are going to choose whatever forum they believe will give them the fairest result, at the minimum expense and delay. If a private solution such as arbitration offers a better alternative than the courts, that is what they are going to choose.

No one is going to say, ‘hang on – I had better pay a whopping court fee and wait months for my dispute to be resolved, because there might be some important case law to be developed here, for the benefit of others’. And nor could you expect them to.

So if judges are worried about the court system being undermined, they need to do all they can to ensure that using the courts is a more attractive option than using private means.

Indeed, Lord Thomas acknowledges that there are areas in which ‘radical reform is essential’ to deliver improvements, and he points to the need for better use of technology, accompanied by simplified procedural rules, to provide the basis of a modernised infrastructure.

So the court system needs to deliver a better service, but do so at lower cost – and the only way to square that circle will be through clever deployment of technology. But government will need to spend before it can save – and there lies the danger. For online claim-filing and administration to work, there must be proper IT investment across the court infrastructure.

For a procedural system that relies on ‘quasi-judge’ registrars to filter and manage claims, there must be investment in proper training.

If justice reform is well planned and properly funded, it could just work. If it is done on the cheap, the result will be a system that is worse than ever – and where private alternatives exist, that is what people will use. Who can blame them?

Rachel Rothwell is editor of Litigation Funding magazine