The Rule of Law by Bingham Tom

The Rule of Law by Bingham Tom

Author:Bingham, Tom
Language: eng
Format: epub
ISBN: 9780141962016
Publisher: Penguin Books Ltd
Published: 2011-07-07T04:00:00+00:00

Civil actions

Historically, the parties to a civil action in the UK could to a large extent keep their powder dry until the trial, a procedure which came to be known colloquially as ‘trial by ambush’. But the rules have changed. The fair trial of a civil action is now held to require the parties to reveal their respective cases and almost all material relevant to them before the trial even begins. The policy of the law is that litigation should be conducted with the ‘cards face up on the table’. This is achieved, first, by requiring the claimant to set out in writing in some detail the grounds on which he claims. He cannot appear at trial and present a case different from that which he has advanced in writing. The defendant in turn must set out in some detail in writing the grounds on which he resists the claim. He cannot simply deny the claim and leave the claimant and the judge wondering what his defence is. Nor can he appear at trial and advance a defence different from that indicated. Thus the line of battle should be drawn with some precision before the first shot is fired in court.

The parties are, secondly, required to disclose to each other any documents on which they rely in the action and any documents which adversely affect their own cases, any documents which adversely affect any other party’s case or any documents which support any other party’s case.22 This is a very important procedure, since it means that a party may not produce the documents which strengthen his case while withholding the documents which weaken it, and not infrequently letters, diary entries, memos and minutes made or written at the time provide a surer guide to the truth than what the litigants say years later when differences have arisen. Lawyers often hope, usually vainly, that among the other side’s documents there will be one or two documents which will demolish that party’s case, but documents disclosed in this way can be very revealing, and litigants are often surprised by the intrusiveness of the procedure. Material cannot be withheld even if it is extremely personal.

Nowadays, in contrast with practice in the past, the parties are required, thirdly, to exchange in advance the statements of the witnesses they propose to call. The days of the mystery witness, unexpectedly called at the eleventh hour to reveal all, are a thing of the past, a great loss to television drama but a great gain to justice. A party cannot lie low and ambush his opponent.

The general rule of documentary disclosure is subject to certain limited exceptions, of which two should be mentioned. The first is sometimes described as ‘legal professional privilege’, an unhappy misnomer since it wrongly suggests that the privilege belongs to the legal profession when in truth it belongs to the client. The purpose of this exemption from the duty of disclosure is to protect the quality and confidentiality of legal advice given to the client.


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