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| Sunday, 10 November 2002 |
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| News Business Features Editorial
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Judgement delayed is justice denied : The need for legal reform by ASIFF HUSSEIN The sorry state of the country's legal system needs no elaboration. Truly is it said that judgement delayed is justice denied and yet we find that protracted legal battles continuing for years on end have become the order of the day, resulting in the financial ruin of the litigants concerned, not to mention a host of other problems such as mental anguish and depression and its resultant social ills. The only beneficiaries are the lawyers who continue to gains from their exorbitant fees and the state which benefits by the sale of legal stamps. That this is largely the result of British colonial rule cannot be doubted. British rule in the country resulted in what we know as the adversarial system of justice where the litigants are told to battle it out in court by hiring and retaining lawyers and paying for it all. This is in sharp contrast to the inquisitorial system of justice prevailing in continental Europe where the judge delves into the merits of the case and delivers his judgement accordingly. That such a system is more humane and just and to the benefit of all concerned cannot be denied. The invariable outcome of the adversarial system is that the trial becomes a legal drama enacted by the lawyers who run the show as they please. Hearings are delayed, cases postponed and appeals and counter-appeals win the day, all to the detriment of the litigants concerned. That this system is largely the result of colonial rule is borne out by the testimony of Major Thomas Skinner who in a Memorandum on the Social Condition of the Native Population of Ceylon submitted before the House of Commons (1849) observed that British rule in the country had resulted in the 'encouragement to indulge in the most litigious spirit which ever afflicted the taste of a people'. " The prevailing system of our little district courts admits of proctors feeding upon their clients for years. I have repeatedly, at uncertain intervals, been summoned to attend a district court as a witness in a case which had been before the court ten or eleven years. On my appearing in obedience to my summons to give evidence, I have been told that the case was again postponed; and so I conclude it will continue to be deferred, until by the death or departure from the country of the most important of the defendant's witnesses. it may be found expedient to press for a decision of the case. I have seen instances wherein the judicial stamps have far exceeded the value of the case under adjudication, and which by numberless vexatious postponements have been protracted over a period of many years, to the ruin of both plaintiff and defendant; the proctors by their fees, and the government by the sale of judicial stamps, being the only gainers". This however does not mean that such an unjust system should continue. Legal reforms effected in the west including Britain have largely done away with many of the unjust laws and conventions which had formerly characterised legal practice in these countries. One such reform is the recognition of contingency or no-win no-fee payments where the lawyer enters into an agreement or contract with his client to the effect that he will pay a certain percentage of the outcome. Only when the client wins the case is the lawyer given his fees which may amount to say, 10 percent of the payment or compensation awarded to the litigant. This is the usual manner in which civil litigation takes place in the US where such cases are known as no-win no-fee cases. In the UK, these are known as 'contingency fees' since such payments are made contingent to the happening of an event, in this case a legal decision in favour of the litigant. Besides this system, greater emphasis on ADR or Alternate Dispute Resolution methods such as arbitration, conciliation and mediation in the west have largely done away with the need for recourse to the courts in these countries. Contingency fees The Executive Director of the Legal Aid Commission Leslie Abeysekera, a fervent advocate of the contingency fee and alternate dispute resolution systems contends that it is high time Sri Lanka too adopted these practices in order to expedite the litigation process and encourage alternate means of resolving disputes which should go a long way in helping prospective litigants arrive at an amicable settlement to the benefit of all concerned. Abeysekera explained that local law as it stands at present prohibits lawyers from charging a percentage of the outcome on what are claimed to be 'ethical grounds'. This Supreme Court rule is an extension of the Roman-Dutch law principle of champerty, a sum which 'no honourable person should charge' and applies to all individual lawyers and companies of practising lawyers. This however does not mean that this ruling should go unchallenged. Legislation on the matter could legalise the practice of contingency fees as was recently done in the UK, he explained. In 1990, the UK changed its existing law which had prohibited the levying of contingency fees and permitted it in a number of limited areas such as compensation. The scheme was reviewed in 1998 and it was found that it was working well. As many as 30,000 persons had benefitted from the scheme during this period- persons who if not for the contingency fee scheme would have had recourse to legal aid on which the British government spends as much as one billion Sterling Pounds a year. As a result, the scope of contingency fees was enlarged to cover other areas and it has today become firmly established legal practice in the UK. Abeysekera explained that legal aid in Sri Lanka confined to the poorest sections of the population has its limitations as well, so that one cannot perpetually depend on government grants and foreign donors as is presently the case. The solution then is to legalise and encourage the contingency fee system and other means of dispute resolution, he pointed out. Abeysekera contends that the perennial law delays in our courts could be overcome to a significant extent if we too were to adopt the contingency fee scheme. He explained that in a context where lawyers are paid per appearance as is presently the case, the tendency is to drag on the case, to procrastinate, to postpone the judgement day, since in the meantime they get their fees which they could not expect if the case were given a quick trial. This human failing if we may so term it, however means that the litigant suffers unnecessarily for no fault of his. In contrast, under a contingency fee scheme where the lawyer is paid a percentage of the outcome, it is in his interest to argue for a quick conclusion to the case since it is only with its conclusion that he gets paid his fees. Abeysekera is however disappointed with the negative or rather lukewarm response he has received from the legal profession during the course of his campaign to legalise the contingency fee scheme. The Retired Judges Association recently appointed a sub-committee of three retired judges of which he was the Chairman to study the issue. A report on the matter was subsequently submitted to the Bar Association which has so far not responded to the proposal positively. Abeysekera pointed out that although the report has sought to show that the contingency fee scheme is to the benefit of lawyers as well, they continue to oppose it without caring to study it or understand its real implications. He avers that the opposition to the practice is due to ignorance on the part of lawyers. In fact he found that many of the lawyers whom he spoke to in 2000 were not aware of what had taken place in the UK a decade earlier in 1990. Abeysekera however believes that although the practice is illegal, it is nevertheless practised by some lawyers. At any rate, the Legal Aid Commission recently started a scheme where the litigant is required to pay 10 percent of the outcome in a certain number of limited cases involving compensation such as running down cases and medical negligence. It has since proven to be a success and could serve as an eye-opener to the legal profession, he pointed out. He explained that the LAC, being a statutory body is not bound by the Supreme Court rule prohibiting contingency fees as it is applicable only to lawyers and law firms. Dispute resolution Besides this, there is also the need for encouraging alternate means of dispute resolution such as arbitration, conciliation and mediation which should go a long way in bringing down legal delays. Abeysekera explained that although such dispute resolution mechanisms could be resorted to out of court, they could also be applied within the courts system. "Our courts should encourage people to settle their disputes by discussion so as to arrive at a quick settlement to the satisfaction of both parties", he stressed. He pointed out that unlike in a lawsuit, ADR methods involve both parties having to come halfway and giving up some of their rights. When it is settled however it is to the contentment of both parties. There are no winners and losers. However, when one party wins after a trial, there is that recrimination and attitude of vengeance that does not die out easily. The litigants continue to appeal and fight over an issue that could have been easily settled had both parties been urged to resort to arbitration, conciliation or mediation. He noted that whereas in Sri Lanka, only 10 percent of the cases are settled out of court with the rest going to trial, in the US only 10 percent of the cases go to trial while the rest are settled by arbitration, conciliation or mediation. Abeysekera said that although Sri Lankan judges do encourage settlements, the practice is not institutionalized. Existing law requires that prospective litigants resort to mediation boards for claims below Rs.25,000. It is only if the mediation board is unable to settle the issue that it is allowed to go to trial. The scope of such claims could be enlarged but should be disciplined by a legal mechanism so as to manage it more effectively. Laws should be passed to institutionalize alternate means of dispute resolution so that even private individuals and organisations would be well within the law in setting up ADR centres, he stressed. The Retired Judges Association has meanwhile set up an ADR Centre which has since mediated in a few cases at no cost to the contenders concerned. Its lack of financial and human resources however remains a serious drawback in expanding its services to the more deserving sections of society. |
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