Federal Attorney-General Daryl Williams has again expressed his concern about costs and delays in the legal system. He told a conference in Brisbane this week that the “”ordinary, prudent and self-funding litigant” should be the benchmark for the setting of fees. Mr Williams said there was more to the law than running a business and making a profit. There is some merit in this ideal, but the steps needed to achieve it are likely to be difficult.
During his tenure as Attorney-General Mr Williams has recognised that reducing costs to ordinary users of the law cannot be done by throwing money at it. The more money government throws at the legal system, the more it gets soaked up by lawyers. He took the highly unpopular step of restricting Commonwealth legal-aid funding to federal matters, arguing that the states should pick up the rest. The trouble has been, however, that this step has left many people out in the cold.
More change is required within the legal system if costs are to be contained. That cannot be done by the Commonwealth alone.
Mr Williams made one suggestion on the fees front that might have some effect. He thought that fees could be charged on a results basis rather than a time basis. Thus a lawyer might get a set fee for a property settlement or a custody case, rather than charging according to how long the case goes on. The trouble with time-based fees, of course, is that it provides an incentive for lawyers to spin out cases. Set-fee charging provides an incentive to deal with cases quickly.
Mr Williams made the point that, as things stand, the wealthy can use money to put an opponent out of the game.
The fundamental trouble here is that judges, in their desire to ensure fairness by allowing each party to run their own case and to pursue every avenue however elusive, end up causing unfairness if the resultant costs put the other side out of the litigation. This is not hypothetical; it happens.
It would require a rethink of court procedure, the rules of evidence and, indeed, the whole adversary system to prevent. The adversary system, with its winner-take-all, encourages a fight rather than settlement and it result in longer cases because judges seldom intervene to streamline them to essential points. The Australian Law Reform is looking at the adversary system. Reform could help reduce costs and delay.
Then there is the law itself. Parliament keeps churning out pages of legislation. Much of it is complex and unnecessarily detailed.
The increasing resort to mediation is a vote of no-confidence in the legal system — in its costs, delays and formality. It is almost cliche, but nonetheless true, to say that our legal system provides Rolls Royce justice, but who can afford a Rolls Royce? It was not always so.
It is too easy to blame the lawyers. If the system permits it they will charge what they can get away with. Moreover, the system itself is causing cases to drag on too long.
Maybe the Law Reform Commission and Mr Williams need to look at the judiciary. At present they are taken almost exclusively from the class of experienced trial lawyers steeped in the adversary system. Perhaps we should create a separate judicial stream straight out of law school who are specially trained to be judges, not adversary lawyers, who cut their teeth on deciding traffic matters and work their way up trying more difficult matters as they go.
This is the base of the system in continental Europe. No system is perfect, but there is no reason to assume, as has been the case for so long, that British justice is best.