I have been asked to speak about the above matter and I apologise that what I say will be basically "off the cuff" owing to time constraints, but I hope that it will give some insight into the problems which exist. Although the conference is about environmental matters, I have been asked to speak about the role of Judges generally.

Before starting it is fair comment to say that on several occasions when advocating before Judges I have had to expressly remind their Lordships that whilst the Courts may commonly be known as the Law Courts, the front door in tact has written near it "Royal Courts of Justice" and that consideration should be given to the fact that it is supposed to be a place of justice. Normally I get back looks of disbelief as to what I mean.

The point is that in the United Kingdom in particular we have what is known as the "command" concept of law or otherwise known as the "pyramid" system, originating from philosophers Austin and Kelsen, which is that there is an enabling law at the top of the pyramid e.g. a statute and that everything which takes place under it is legalised. Consequently Local Authorities and similar bodies are almost immuned from legal redress when exercising powers which come within the "pyramid" system, On the other hand the civil law system in the other European countries is based upon Natural Law and has regard to the doctrines of the philosopher Rousseau. Consequently actions including actions by public bodies are more likely to be judged by whether they are right or wrong in fact. If for example an administrator complies with the letter of the law, then he/his authority may still be guilty or liable if the action has been done for an improper purpose.

It is possible that some of the above problem could be addressed if there were an intelligent fusion of the English common law type of system and the Continental civil law system. At least it would be helpful if they adopted more of a precedent system and we adopted their procedural system. This is being done to some extent by the new Court rules which, have the object of giving more responsibility to the Court for legal actions. Whether or not the new system will be little more than a "shambles" as yet remains to be seen. At the moment it seems to be a type of "as you like it" system, but if the Judges and Court Officials as well as the lawyers try to be responsible about helping the new system, it could work but will need refining.

What is the problem about the Judges?

You read now every day in the responsible newspapers that Judges are making outrageous comments or bizarre decisions and no one seems to be able to do anything about it. Although in the past there must always have been a few "renegade" Judges, the position now is that the problem is getting worse and worse rather than better and better. This epidemic must have become aggravated by the changing social times in which there is a somewhat "spiv" attitude commercially minded concept of life and in which ordinary people are more aware of the injustices being done to them being more likely to go to law for redress. That probably is the cause of the escalation but the essential explanation of the problem is much more fundamental and I would suggest of the following nature.

1. The Judges come essentially from the ranks of the senior barristers. Generally speaking they went to public schools, never wanted during their lives, earned big fees, never engaged in any form of trade. Even the arranging of their fees is done by a clerk in order to barrier them of from any money matters. No doubt the wife does all the housekeeping and shopping and of course barring accidents barristers are not responsible for their work in the sense that it is practically impossible to sue them successfully because essentially their work is classed as opinion and tactics and Court work. It would not be surprising that when such a person becomes a Judge, he has very little idea of "the real world" and certainly no idea about the problems and aspirations of the "little man in the street" i.e. the ordinary citizen.

Further, because barristers feel that they have a right to significant fees in view of their ability and standing in the society, whilst they would have no jealousy of a corporate client getting a large recovery in damages, they do seem to have some type of attitude problem towards the ordinary people. For example in a substantial commercial case I had recently in which the claim was some USD3M for two partners whose business had been ruined by a Bank the QC said outside the Court before the hearing that "£100,000 wouldn’t be too bad for a couple of chaps" to which I ushered the barrister some distance from the clients and requested more tact.

2. At least one leading newspaper quoted a senior barrister of accusing some Judges of "intellectual dishonesty." What this means is not telling lies exactly, but manipulating the ingredients of the case in order to suit the judgment they want to give. I am sure that goes on quite a lot and the fact is that frequently Judges do not read their papers properly. The problem of "intellectual dishonesty" arises also because in view of the lack of responsibility which barristers have and the fact that they are advocates of legal concept, there is a tendency for them to be mischievous in the sense that if there is a choice between a bizarre construction which can be argued and a straightforward one, then there is a temptation to "tickle their fancy" by seeing if they are good enough to persuade the Judge of the bizarre and even with a bit of luck create new law. It is a fact that if a barrister can bamboozle the Judge, then his colleagues will consider that he has performed with great excellence. This attitude is totally the opposite of the civil law countries. The point being made is that whilst it is difficult to criticise barristers for doing their jobs as they see it, the attitude does not bode well for a justice system when they become Judges.

3. It is fair comment to say that basically the Queen and the Judges are immuned from removal. The Judges can defame people from their Court, make outrageous orders which the Court is not authorised to make (other than because it’s the Court) and they cannot be sued for damages or otherwise for the havoc which they cause. The historical reason for Judges being in this position is that in the first place it was considered that Judges were essentially responsible members of society and in the second place - together with the benefit of a decent salary - Judges would not become corrupt if they were immuned. Unfortunately, this is a different day and age. It is quite out of the question for Judges to be so "barriered" particularly now that they are so out of touch with the people and it is absolutely necessary to have a system as in the United States where Judges have to be re-elected or re-viewed periodically. In that way they would not act so outrageously when they knew that their careers were on the line in a year or so’s time.

4. The solution to the problem is not to "shoot the Judges", but to attack the source of the problem which is their lack of suitable education, It is not clear when the two sides of the profession will become fused. It has to happen because presently the system is obscelescent and far too expensive. That would alleviate the position. There is clearly more need for senior solicitors to become Judges because they understand the needs of the clients and the problems of economics and value, whilst on the basis that barristers are to continue to be the Judges, then more consideration will have to be given to the extent which they have some practical aspects of their background. For example an Admiralty Judge who used to be a Master Mariner on a Ship would have a good idea about the World. However there could be training sessions for Judges and a certain amount of community service, which would help.

I have been asked to mention some experiences of abuse by the judiciary

It has to be said first of all that these experiences have mainly arisen more recently in connection with work on behalf of ordinary citizens as opposed to the Institutions.

In the well televised "Oast House" case when the Local Authority were seeking to demolish one "turret" so as to leave it lop sided, we won three High Court hearings in a row against the Local Authority but the Judge did not like the attitude of the Plaintiff, so he refused to award costs in his favour and when asked for leave to appeal actually had the gall to say that he nearly awarded costs against him. In the Court of Appeal their Lordships manipulated the position. There was an amendment insignificant in costs relating to the title to the action and their Lordships thought that the trial Judge was justified in his costs order, since he might or could have taken into account the cost of the amendment. Both Courts ignored the fact that the Plaintiff had won the issue three times.

In a large Banking case against one of the National Banks, the Bank ruined the two proprietors’ business by sending the documents to the wrong person. After a considerable Court hearing, the Judge found the Bank totally liable and liable for loss of trade for several years, but he awarded contemptible damages of only £70,000 + interest. There was a one day’s hearing about his draft judgment because the damages were considered to be totally misconceived. Although he refused to relent or give reasons, when the interest was calculated the Plaintiffs still beat the payment into court. In the dying hours of the case the Judge adopted a spurious reasoning and awarded the costs in favour of the Bank against the Plaintiffs knowing that it would make them hopelessly bankrupt even taking into account the damages awarded in their favour. One of the Plaintiffs accused the Judge of corruption and has since "died with a broken heart". The case is now in the Court of Appeal.

In an extremely difficult case at the end of last year on behalf of a husband and wife who have lost the value of their property from negligence of two sets of solicitors, we won the case on liability. Because at the beginning of the case the Judge did not have a clue of what it was about, not having read his papers properly and not having the benefit of Skeleton Arguments from the barristers, in the dying hours of the case after his judgment he made an order that the Plaintiffs’ solicitors, ourselves, were not to be paid the costs of preparing all the paperwork for the successful hearing. The matter is under appeal to the Court of Appeal. The Appeal Judge has so far classified the order as apparently controlling solicitors, has orchestrated a change to the parties to the action without making a specific order, is seeking to order the Legal Aid Board to appoint a barrister to argue what is effectively the trial Judge’s cause, ignored the rights of the Plaintiffs to pursue the appeal in their case and leaned on our barristers not to carry out their instructions. I do not propose to elaborate on the matter further in this paper or the fact that it is a serious interference with the Plaintiffs’ legal representation in the middle of their case, which still has the main part of damages to be heard. It is such a serious constitutional crisis that it is quite breathtaking what is going on.

It is also commonplace that although clients are entitled to be represented by solicitors, when a solicitor does appear before a High Court Judge, even when the Judge has given leave, the common practice is to heckle and obstruct the solicitor as much as possible, because the barrister monopoly is still preferred. Personally I simply ignore the abuse, but some solicitors would undoubtedly be overwrought by the Judge’s conduct and be disabled from presenting his client’s case properly.

Unfortunately there are no effective civil rights

Other possibly than the Magna Carta in 1216 which I believe is for the benefit of the nobles in their quarrels with the King, there is no written constitution in our country or any bill of civil rights. The remedies have had to be by way of judicial review in the form of prerogative writs or otherwise. Regrettably these processes are cumbersome, expensive and more often than not do not lead to justice. In particular the Court will not set aside decisions because they are wrong, but will treat them as matters of discretion for the adjudicator or administrator. Consequently they cannot be attacked unless no reasonable person could come to such a conclusion. That is a very high standard to attain for a citizen challenging what has happened.

The saving grace is the Convention on Human Rights, which although enacted in this country, does not come into force until some time next year (hopefully). This Convention which is idealistic is appropriate for the civil law system of interpretation, but is not so appropriate for the English system. It will not be possible for the English Courts to construe the Convention in a pedantic fashion by applying the so-called "golden" and "literal" rules of construction. If they do it will not do justice to the Convention~ In any case it is not clear to what extent the Judges will simply find a way of circumnavigating the Convention. For example in one case recently when I was arguing before the Judge for the benefit of Article 8 which says that apart from the action of a public authority having to be in accordance with the law it also has to be necessary for the protection of rights and freedom of others, the Judge quite bluntly told me that as long as the Local Authority complied with the statutory procedures then there couldn’t be a breach of Article 8, which of course would destroy the whole object of the Article which is to judge the action being carried out to see whether it is fair and proper in fact.

In conclusion

In conclusion it has to be said that the newspaper which apparently stated "justice is missing from the British legal system" is in my opinion absolutely correct. Unless the root of the problem as I had explained above is put right or at least substantially alleviated, there will be no improvement. At the present moment although the public is led to believe that there is a lot of political activity to improve the legal system, in my opinion this is deceptive and I do not see any steps effectively being taken to address the problem.

William Merrick, Sept 1999