The fundamental duty of a trial judge is to make decisions in the courtroom, but new columnist  Professor Robert Black remembers the days when judges did everything in their power to avoid doing just that. Now Professor Black fears that the shift towards judicial case management could ultimately see trial judges become little more than overseers of the settlement process. Is the role of the judge about to change forever?

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Over fifty years ago a very perceptive English judge said: “The function of a trial judge is to be quick, courteous and wrong. That is not to say that it is the function of the Court of Appeal to be slow, rude and right. That would be to usurp the function of the House of Lords.” 

It is noteworthy that his Lordship did not deem it necessary to say just what it was that a trial judge should be doing quickly and courteously and getting wrong. What a trial judge did was far too obvious to require to be explicitly stated.  He (at that time there was no judicial she) decided cases.

Traditionally, the job of a judge is to make decisions, usually on the basis of competing arguments from the legal representatives of the parties appearing before him or her. Even when the ultimate decision is in the hands of others (as in a criminal jury trial) it is the judge who must decide what evidence can properly be presented and can properly be taken into account by the jury and who must decide any legal or procedural issues that arise in the course of the proceedings.  

When I was in practice as an advocate in the late 1970s there existed a considerable number of Court of Session judges, largely in the Outer House, whose most strenuous efforts in their working lives were devoted to avoiding having to make a decision. Decisions had usually to be supported by written opinions, which involved a measure of intellectual effort that some judges were unwilling to expend. Moreover, if a decision were made this might lead to the judge being taken to appeal and some of them appeared to regard this as nothing less than an outrageous personal affront.  

The most prevalent judicial technique for avoiding having to make a decision was to exert pressure on the parties to settle. In my experience, the possibility of settlement was always an issue that that was exhaustively explored by counsel with the client and his local and Edinburgh solicitors at the pre-proof consultation. Many cases in which I was engaged settled as a result of authority and instructions received then. Those which could not be settled were those which genuinely required to be resolved through the judicial process; and being subjected to pressure from the judge, sometimes extreme and involving far from subtle intimations of judicial displeasure, was a further burden added to the anyway stressful task of representing a client. The predominant motive for such judicial behaviour was then, in my view, quite simple: laziness. Things, I am sure, have improved over the years.

Now, more than a quarter of a century later, the one minor concern that I have about the seemingly inexorable move towards judicial case management is based on the fear that it may simply signal an institutionalisation of, and provide a rationalisation for, the avoidance by judges of their primary function, namely making decisions.  

If it be the case that the possibility of settlement is no longer explored with the parties as a matter of course by their legal representatives, then it is clearly right that judges should have powers to encourage (and perhaps to require) settlement to be at least considered. But if it ever becomes accepted that a first instance judge’s principal function is to supervise settlements rather than to make decisions on legal disputes, we shall have lost something of immense value. Indeed, the judicial oath requires that the judge “will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.” 

Doing right, in my submission, means no more and no less than deciding legal disputes in accordance with the substantive and adjective law of Scotland. It does not mean, or at least can only at a very subsidiary level mean, supervising a civil justice system predicated upon the concept of the settlement and where the necessity for a judicial decision on a case is regarded as tantamount to a failure in the proper operation of the system.

The raison d’être of a trial judge is to apply the law in making decisions which, subject to any available appeal, resolve legal disputes.  If, in pursuit of some such goal as economic or managerial efficiency and maximising throughput in dispute resolution, this role is undermined our whole legal system will suffer.  The development of our law depends in part on a flow of judicial decisions, first instance and appellate. If that source dries up, then the only remaining mechanism of development is legislation. Is that what we really want?