Principles of Civil Justice (LAWS0247)

This module provides a detailed study of the fundamental principles that underpin the structure and operation of the civil justice system.

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Module content

This module provides a detailed study of the fundamental principles that underpin the structure and operation of the civil justice system

An effective civil justice system is the means by which substantive legal rights are elaborated, vindicated and enforced. Over the last twenty years such systems have been subject to significant reform across the world, not least in recent years through the development of proportionality as a procedural principle and the increasing digitisation of civil courts and their processes.

Course content

This module provides a detailed study of the fundamental principles that underpin the structure and operation of those systems. As such it critically examines principles of due process, for instance, judicial independence, the right to be heard, to equality of arms, to open justice, common to all civil justice systems and contemporary challenges to them.

It examines overarching theories of procedural justice and recent reforms that have seen the introduction, in differing forms, of a new theory of procedural justice based on proportionality across common law jurisdictions.

It then focuses on the procedural principles and contemporary discussions concerning specific procedural processes, and challenges for and developments in civil justice.

The module approaches the subject primarily through an examination of the English and Welsh civil justice system, and the manner in which principle has shaped it and been the subject of reform. It also does so through reference to the ALI/UNIDROIT Principles, the ELI-UNIDROIT common rules of European civil procedure, common law jurisprudence from, for instance, Australia, Canada, New Zealand and the United States of America.

Structure

The course is divided into three substantive parts. The first part provides students with an in-depth analysis of general, theoretical principles of procedural justice. This includes consideration of three differing conceptions of the civil justice system’s aim are considered: first, the commitment to securing justice on the merits, which has, historically, been the predominant organising principle of civil justice; secondly, Bentham’s theory of judicial procedure, which understands the search for justice on the merits as subordinate to wider policy considerations; and, finally, the turn towards proportionality as a fundamental procedural principle, and its different meanings across different jurisdictions.

The second part of the course examines the role and underpinnings of discrete aspects of the civil justice process and the way in which they have been shaped by and are being revised by the fundamental conceptions discussed in part one of the course. The convergence in approaches across common law and civilian justice systems is considered. It also considers issues relating to litigation cost and funding: the development of contingency and third party funding and the role it plays as a replacement for state-funded legal aid.

Finally, the course turns to the future of civil justice, and most specifically the digitisation of civil justice. This covers the tension between different conceptions of the future of civil justice: are digitised civil courts simply to replicate digitally what the traditional civil courts do or are they to shift their aim to encompass and integrate ADR and ODR? It also examines the positive and negative effect on the development of the law through precedent, digitisations effects on advocacy, the legal profession and their role in the delivery of justice, and how digitisation may affect the open justice principle and judicial accountability. It concludes by looking at the impact AI may have on civil justice.

Module syllabus

1. Due Process
2. Judicial Independence
3. Accountability, Open Justice and Reasoned Judgments
4. Accuracy, Justice on the Merits and Settlement
5. Bentham, Proportionality and Case Management
6. Court structures and trans-substantivity

Applying Principles of Civil Justice

7. Interim Relief
8. Expert Evidence
9. Evidence - Disclosure
10. Privilege from Disclosure
11. Mass Litigation
12. Appeals
13. Litigation Cost and Funding
14. Digitisation of Civil Justice – online judging or extended courts
15. Digitisation and Precedent
16. Rule-making for Digitised Civil Courts
17. Advocacy in Digitised Civil Courts
18. Lawyers and the Future of Civil Justice
19. Transparency and Accessibility in Digitised Courts
20. Digital Justice, AI and Civil Justice

Recommended materials

• Adrian Zuckerman, Zuckerman on Civil Procedure: Principles of Practice (2021) (an excellent alternative, is Neil Andrews, Andrews on Civil Processes (2019))
• John Sorabji, English Civil Justice after Woolf and Jackson (2014)
• Richard Susskind, Online Courts and the Future of Justice (2019)

Module reading lists and other module materials will be provided via online module pages, available at the beginning of term once students have enrolled.

Key information