“Flattening the curve” of post-pandemic disputes | In Principle

Justice systems around the world will soon be exposed to the same pressure as is currently crushing healthcare systems in the wake of the Covid-19 pandemic. What can judges and advocates do to “flatten the curve” and increase the resilience of the justice system as it awaits the post-pandemic wave of disputes?

Healthcare systems around the globe are wobbling, and in some states collapsing under a tsunami of Covid-19 cases. Governments are taking drastic steps to relieve the pressure and flatten the infection curve, because healthcare systems, in any case already dysfunctional in many states, find themselves dramatically unable to cope with the dynamics of the present pandemic.

Another system will inevitably soon come under similar pressure – the justice system. And its inability to cope with the effects of the pandemic may be just as deadly.

Courts are vital parts of the economic system and critical overloading of the judiciary could exponentially deepen the impending recession. This might literally cost lives. In “Big Short” – a brilliant movie about the 2008 financial crisis – one of the main characters shouts angrily to his colleagues, who are celebrating that they were able to “bet against the American economy” before anyone else knew it was doomed to crash: “Here is a number, every 1% unemployment goes up, 40.000 people die. Did you know that?”

Economic development is not only about wealth generation. It is also about saving lives. And how our justice systems operate in the immediate aftermath of the pandemic will directly determine whether our economies can quickly recover and bounce back, or whether development will be set back for a hopelessly long period. Much of the responsibility here will rest on lawyers – judges, arbiters and advocates.

What can judges and advocates do to make sure they play a positive role in these challenging times and that they live up to the public promise on which their professions are based? Much of this is out of our hands, just like much of how public healthcare systems work is out of the hands of doctors and nurses, being rather in the hands of politicians and legislative bodies. But just like doctors and nurses now, lawyers can also play positive roles in post-pandemic times and soften the blow of the imminent crisis, if they treat their mission seriously. They can also worsen it significantly if they fail.

Flattening the curve

As in healthcare, the key to coping with the post-pandemic wave of disputes in the justice system will be in “flattening the curve” – making sure that the number of cases requiring “treatment” is minimised and that the system is only used for those cases and litigants truly requiring it.

Just as with doctors and respirators during the pandemic, judges and courts will be particularly scarce resources in its aftermath, when litigants come knocking at the door with disputes concerning frustrated contracts, cancelled projects, disrupted partnerships or bankruptcies and unpaid wages. Technological developments, the rise of online courts and dispute resolution AI, which some see as a cure, can obviously help mitigate this. But wise and honest women and men, competent, experienced and intellectually independent enough to resolve disputes with parties’ very fates at stake, will always be in short supply.

The whole world will therefore have to reckon with what is already obvious in advanced and well-functioning jurisdictions – that providing real access to justice to those who truly need it means refusing it to those who care not to use it with sufficient respect for the rights of others.

Abuse of process

We will finally have to take seriously the need for an effective application of the doctrine of abuse of process.

It is astonishing how this concept has failed to take root in some jurisdictions, because of some ill-informed arguments that abuse of process has to be tolerated by courts until a code or some other legislative act defines precisely what abuse of process is and stipulates respective sanctions. In international law prohibition of abuse of rights has always been a fundamental principle, with no treaty or code necessary for it to develop into a universally accepted, basic principle. The right to court has never been exempt from this prohibition and international tribunals have never had any problems in deciding how to react to abuses of this right, even though no act or code has defined the relevant sanctions. That is because abuse of one’s right to court is a violation of the same right of another. In some national jurisdictions it has been just as natural. But astonishingly not in other.

Yet, in order to deal effectively with a wave of disputes caused by the pandemic, and help the economy recover, no jurisdiction will now be able to tolerate litigants cluttering the courts with frivolous or vexatious claims or defences, demanding that cases proceed on the basis of inadequate or insufficiently particularised statements of case while parties “fish in muddy waters”. Nor will it be tolerable to pursue disloyal or negligent tactics in which arguments are retained for later stages of the dispute rather than diligently and honestly put forward at the outset, so that disputes can swiftly be defined, contained and dealt with effectively, and the court resources can be used for the benefit of other users in potential need.

We may have been able to indulge such wastefulness during “years of plenty”, in the name of some extravagant legal theories about the allegedly special nature of the “right to court”, supposedly exempting this from the concept of abuse, according to some. We no longer can.

Out of court dispute resolution

“Flattening the litigation curve” will also have to mean effectively punishing absence of a constructive approach to conflict resolution. Insisting on superficial requirements, like the requirement hitherto applied in some jurisdictions that plaintiffs should explain in their court applications why their case could not have been resolved amicably, will not suffice. Real efforts will have to be made to cause parties to actually approach conflicts constructively and truly try to resolve them diligently and in good faith before they bother the courts.

Sensible legislative intervention would certainly be helpful in this regard, obliging parties to use pre-action protocols or allowing them to make settlement offers “without prejudice safe as to costs” to increase chances of settlement. But most of the time courts already do have the tools to promote the use of thorough and constructive pre-action correspondence, and punish failure to do so where this is called for. Or to structure proceedings in ways which would allow the reasonableness of positions taken by parties in settlement discussions to be taken into account in decisions on costs.

Most certainly, there is nothing to prevent counsels from handling their clients’ cases constructively and adhering particularly strongly to their overriding duty to the court, resisting clients’ requests to act otherwise and to abuse or use recklessly the right to court on their behalf. Adherence to ethical principles demanding this from advocates will be particularly important in the coming times.

Collective redress and representative action

Most cases which reach the courts in the post-pandemic wave will revolve around the same issues. Availability of effective ways of collectively resolving such disputes will also be crucial for managing these cases.

Legislative works to improve access to collective redress have been underway for a long time, including at supranational level. These must now be expedited, as a matter of urgency.

It will be particularly important, however, to improve access to mechanisms allowing non-governmental organizations to litigate on behalf of entire groups or categories of stakeholders. Such empowerment could enable the most credible among such institutions to resolve entire socio-economic conflicts triggered by the pandemic out of court, by way of constructive social dialogue between civic societal institutions.

And here again, the tools are often already in place. But the relevant mechanisms are neglected and rendered inoperative, either because they would be abused or negligently and incompetently utilised by litigants, or because the courts have failed to appreciate their significance and potential in enhancing access to court when this was not as critical as it is about to become. This must change and the courts and advocates must use and interpret existing provisions on collective redress and representative actions responsibly and in manner supporting and facilitating the crucial role of these mechanisms in economically turbulent times.

Funding of claims

Better access to collective redress and improved case management will also improve access to funding of claims, which may be a crucial problem in a post-pandemic dispute resolution world.

The European Commission has recently started examining how to improve funding access in cases involving human rights violations or challenges to the rule of law. This problem will become particularly pressing during the global economic turmoil caused by the pandemic.

If vulnerable litigants are enabled to join forces and scale their claims, the problem will be solvable organically, either through such novel institutions as digitally enabled crowd-funding of public interest litigation, or by way of cooperation between credible representative organizations acting for vulnerable claimants and the world of litigation finance. Especially if the latter shows solidarity and social responsibility, for instance like the UK based litigation fund Therium, which had already established a charity providing not-for-profit litigation funding some while back.

Social responsibility

It would be unwise to assume the above considerations will only be relevant in some categories of cases and clients, whereas in other areas it will be business as usual, with entire dispute resolution ecosystems – law firms, arbitral institutions, specialized international commercial courts, experts, etc. – being able to continue focusing exclusively on lucrative work catering for the needs of the wealthiest individuals and the biggest enterprises.

Times of crisis lead to a social craving for solidarity and strong public resentment at its absence. To use again a medical analogy, this is evident from the public outcry caused by reports of celebrities and wealthy individuals trying to secretly acquire “just in case” medical equipment, desperately lacking in public hospitals  to save lives. This is nothing new. Those better off have always been able to be exuberant in securing their interests, while many others are unable to satisfy their most basic needs. But with the pandemic touching the broad masses rather than just the precariat, this has suddenly become socially intolerable.

In the same vein, opulence in dispute resolution services for big business will cause resentment by the masses obliged to use overloaded public courts. Dispute resolution institutions accustomed to serving big business must therefore take their social responsibility seriously and think how they can also serve the general public. One way of doing this might be for major arbitral institutions to implement schemes also using their resources to resolve business and human rights disputes, for instance under the recently published Hague Arbitration Rules for Business and Human Rights Disputes. Global commercial dispute resolution centres, such as London, New York or Singapore must also open their doors to such cases and refresh doctrines of forum non-convenience or jurisdiction by necessity. More generally, dispute resolution practitioners will have to show solidarity and devotion to their social mission, if we want our systems of justice not to collapse under the post-pandemic pressure and fall prey to populist, authoritarian “reforms”.

Stanisław Drozd, adwokat, Solicitor-Advocate (Civil) of England & Wales (non-practicing), Tomasz Wardyński, adwokat, Dispute Resolution & Arbitration practice, Wardyński & Partners