Judicial activism

In a two-page article in the Solicitors Journal of 24 November Graham Huntley of Lovells propounded that amending procedural codes is not enough to resolve the costs problem in complex commercial litigation; the judges themselves should address costs issues by managing the behaviour of parties. In lower-value claims a procedural code can have a much greater and more effective role to play in regulating and resolving litigation. But, attempting such an approach in the context of complex commercial litigation would be hugely damaging to the many factors that make England, and London in particular, an attractive forum for resolving such business disputes. For those cases we should ultimately focus our thinking on the role of the judges and how we can get them more closely involved in the conduct and process of litigation. The solution is giving, and emphasising the importance of, the opportunity to judges to grasp the complex cases early on and ‘manage’ them in a way that businesses that ultimately use the court would expect to see project managed within their own operations. This includes much more time and training to help judges address costs issues and to review the behaviour of the parties.