I LOVE THE COMMON LAW! WHAT THE EAST CAN LEARN FROM US

In his Reith Lectures, Prof Niall Ferguson decried our growing litigious culture. Prof Ferguson referred, in particular, to Lord Goff's reasoning in Kleinwort Benson with respect to common law development through the 'interstices' of past decisions. According to Prof Ferguson, legal firms are rather incentivised to prosecute and prolong legal disputes.

In respect to legal reasoning, I agree largely with Ferguson and Lord Goff having long upheld the precept of Dixonian 'strict and complete legalism'. To be fair to the legal profession regarding interlocutory delay and expense, however, practitioners increasingly resort to international and commercial arbitration and the diverse forms of Alternative Dispute Resolution to allay and terminate legal conflict. Which is as it should be. Litigation is expensive and often onerous: cf Queensland v JL Holdings. In the UK, Lord Woolf's report on case management enunciated the Royal Courts of Justice's committment to the 'overriding objective' of dealing with cases justly. As the Courts should do. In all cases. 

At the same time, I would exalt the common law and the wonderful legacy it has bequeathed to the Anglo-American world. As the classic case of Donoghue v Stevenson demonstrated, common law courts are, overall, responsive to the claims and demands of struggling litigants. Indeed, Judge Christopher Weeramantry of Sri Lanka objected in his Law in Crisis to the unreasonable and objectionable overload in legislation and regulation thereunder. Since State of Victoria v Meakes & Dignan, at least, in Australia citizens and business have been deluged by a torrent of subordinate legislation and administrative procedure. (The Corporations Act is unecessarily complex, and recondite regulation should be culled). Balancing the scales, nevertheless, amendments to the Legal Profession Act in Australia and adjustments to the Practice Rules and Directions of our Supreme and Federal Courts have certainly redirected legal practioniers to their clients and their obligation to observe the due administration of justice.

And, in fact, the furiously growing members of APAC and China herself could well learn from the English tradition of justice. For all our economic and social travails, the Anglo-American world in its very 'pith and substance' inherits the Rule of Law. India, for all her problems, practices the common law tradition as the world's largest democracy. (A point Sir Michael Kirby has made repeatedly). As we learn from the East in Michael Dobbs-Higginson's 'Age of Disorder, therefore, China and her nanyang diaspora can equally learn from the principled application of practical justice which our courts of common law and equity truly afford.