Litigation's artful delays

Lawyers and the complexity of litigation ... Delay as a defence tactic ... Access to justice includes preventing access to justice ... Reprising the Flower & Hart saga with starring role by Ian Callinan QC ... Abuse of process ... Queensland CJ declined to intervene ... Tulkinghorn on the case 

US law professor Carrie Menkel-Meadow and law dean Bryant Garth in a 2010 article say that:

"Civil procedure, in both the Anglo-common law family and in the civilian legal systems, has been historically known for its complexity, technicalities, and esoteric requirements, generally requiring professional assistance for the pursuit of a civil legal claim."

Litigation systems don't start off as procedural obstacle courses.

For example, G.R. Driver & John C. Miles  in their book The Babylonian Laws say at page 52-53 that:

"There is no record of a case in which a man was deprived of justice by a technicality or by an error made by him in procedure."  

Babylonian law was clear and uncomplicated

John Sassoon in his book Ancient Laws and Modern Problems - The Balance Between Justice and a Legal System, says much the same thing. 

It is the introduction of lawyers that leads to the "complexity" etc.

For example, in its early years, NSW was a place of plentiful cheap litigation. This came to an end when the first English barrister to be appointed as Judge Advocate, Ellis Bent, arrived in Australia in 1809. 

As Australian legal historian Bruce Kercher has written in Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales:  

"He inherited an easily accessible court with simple procedures, easily understood law, low costs and few lawyers. While that system may not have suited  those whose litigation involved hundreds of thousands of pounds, it must have been welcome to the much greater number of small litigants. Bent was determined to end it."  

Bent: introduced complexityAnd he did.

Nowadays there are many tribunals which bypass the complexity - although lawyers will try to get the courts to grab back tribunal work that holds out the prospect of high fees; see for example. 

For the high value civil cases that remain, prospective plaintiffs need "professional assistance" in order to obtain "access to justice".

Defendants need "access to justice" too. One can't argue with that.

But the justice that defendants want access to is, in practice, almost always quite different from the access that plaintiffs want.

Most civil defendants are in the wrong, and while the plaintiffs want justice, the defendants want professional assistance to prevent the plaintiff from obtaining access to justice. 

So, "access to justice" includes preventing access to justice.

Overall, as US law professor Thomas Morgan said in 2002:

"However lawyers might like to claim the core value of furthering access to the legal system, then, their basis for doing so is questionable."  

The best "defence" available to a criminal or civil defendant who is totally, and provably, in the wrong, is to delay the case for as long as possible.

It is not an absolute defence, of course, but there is often money to be made helping clients to stall the inevitable.

Such behaviour, when knowingly assisted by lawyers, and not vigorously opposed by judges, amounts to assisting clients to delay justice for the plaintiff, and that has got to be unethical on any rational scheme of ethics, including legal ethics - and that has been so for centuries.   

In England:

"From at least 1278, the King's justices promised on oath on their appointment that they would not 'prevent or delay justice by any trick or device'..."

(See Introduction: In Within a Reasonable Time - The History of Due and Undue Delay in Civil Litigation, March 31, 2011.) 

That is all very well, but in a 1998 article The legal profession in Medieval England: A history of regulation US law professor Jonathan Rose identifies the four principal types of medieval lawyers: Serjeants, Apprentices, Attorneys and Essoiners.

It seems that  lawyers could be full time essoiners. An essoin was

"An excuse made for non-appearance in an action or suit. It was in the nature of an application for time or for an adjournment, made on the first day of term essoin day."

Melburnian barristers have retained a link to this past.

The Washington DC 2007 ethics rules say:

"Rule 3.2 – Expediting Litigation

(a) In representing a client, a lawyer shall not delay a proceeding when the lawyer knows or when it is obvious that such action would serve solely to harass or maliciously injure another."

The American Bar Association has a self-cancelling version of Rule 3.2:

"A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." 

The ABA comment on rule 3.2 says:

"It is not a justification that ... [non-expediting] conduct is often tolerated by the bench and bar."

The code of professional conduct for counsel at the International Criminal Court,  December 2005, Article 24(5) says:

"Counsel shall represent the client expeditiously with the purpose of avoiding unnecessary expense or delay in the conduct of the proceedings."

The New York Law Journal in an article on February 2, 2009, and apropos of nothing in particular, says:

"... delaying tactics in a litigation are prohibited."

Professor Ernest Lidge III of the University of Memphis School of Law in A Lawyer's Duty to Expedite Litigation (2009) postulates 10 hypothetical delay situations. They are remarkably permissive. In number six: 

"Plaintiff sues defendant for $10 million. The defendant acknowledges to his lawyer that he clearly owes the plaintiff the money, and the lawyer knows that the plaintiff will be able to prove the case at trial. The client, however, asks the lawyer to delay because he (the defendant) is earning an incredible return on the money."

The answer, according to Lidge? - no surprises here -

"The lawyer may delay the proceedings."

Another approach to delays orchestrated by lawyers would be to categorise them as attempts to obstruct the course of justice. 

For example, in Queensland:

"A person who attempts to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime"

The US has gone as far as legislating that ordinary lawyering can't be obstruction of justice. That can be found in Title 18, Part 1, Chapter 73 (Obstruction of Justice) para § 1515 of the US Code (6)(c). 

Australia seems to have no such legislative provision.

Victorian barrister Stephen Warne is a leading expert on professional negligence, regulation and discipline. 

On January 25, 2014 he posted a detailed article on his website about unfounded allegations made by lawyers in pleadings filed on behalf of clients. 

The article revisits the Flower & Hart saga of the late 1990s.

Callinan: advised on delaying tactics

That concerned (among other things) unjustified allegations by a developer (Hersfield) that a builder (White Industries) had engaged in fraud, and it also concerned the legitimacy or otherwise of delaying tactics by the developer's lawyers, in which Ian Callinan QC had played a leading role.

On September 12, 1988 Callinan had written a letter, which included: 

"You will recall that when this [fraud] action was commenced in December of 1986 the expectation was, not that the action would succeed, but that the institution of proceedings would probably defer payment ... of the money demanded by White Industries [in the debt recovery litigation] for some 12 months. I should point out that it is now some 21 months since that advice. That, it then seemed to be the realistic most that might be achieved."

See Justice Goldberg's principal judgment in the case. 

Junior counsel for the developer also wrote: 

"We were tempted to prepare a request [for further and better particulars] which was even more searching and extensive; however, on reflection, we consider that the client's tactical objectives will be best served by adopting an attitude which is not transparently obstructive." 

Delay was the goal being sought to be achieved. 

Bret Walker, the president of the Law Council called for a Senate inquiry into Callinan's activities in the case.

At the time John Harley, President, South Australian Law Society was asked: 

"Do you think Bret Walker will pay a price for sticking his neck up on this one?

A: Oh I think certainly he will. I think he's an extremely brave man."

When the government said "no" to an inquiry, there was one opening left.

Callinan was, and is, and at all relevant times has been, enrolled as a barrister of the Supreme Court of Queensland.

In 1998 the Queensland government issued a green paper paper on legal profession reform which said at page 12:

"There is no disciplinary or complaint process specified in legislation for barristers. Any disciplinary action would rely on the inherent powers of the Supreme Court."

That would place the Queensland Supreme Court's Chief Justice de Jersey in a spot if anyone wrote to him about Callinan. 

Someone did - an organisation called Australian Justice & Reform. 

The Chief Justice replied.

Constitutional watchdog (left)

The CJ seems to be saying that a lack of ethical standards, which is unacceptable in a practising barrister, is fine in a sitting judge. 

This was a lost opportunity for Chief Justice de Jersey to be a "brave man" like Bret Walker had been - to give moral leadership on the subject of lawyers and delay and possibly perjury.

He could have demonstrate, for example, that he possessed the independence of mind which one should look for in a constitutional watchdog such as a Chief Justice ... or a Governor of Queensland.