Many of us will have been thrilled to see an astronomical phenomenon in recent days. Did the moon seem to you to be bigger and brighter recently? Sadly, many of us will also have shrugged our shoulders and asked “What moon?” because in this fine summer of 2013, the skies over the UK have been largely cloudy thus obscuring one of the best shows on earth when the moon reaches its perigee. Missed it? Well do not be downhearted because there is a rerun in 2014, weather permitting.
I confess I had to look up the definition of perigee and was only slightly comforted to find that it is defined as the opposite of apogee. Now I had heard of apogee but was glad this was not the £500,000 question on “Who wants to be a millionaire?” when I had run out of lifelines. To put you out of your misery,in astronomy, an apogee is the point in the orbit of the moon at which it is furthest from the earth. The opposite of perigee! So the perigee is when the moon is at its closest to the earth.
All clear? Well, yes, but believe it or not, not everyone was happy. People were asking why the moon appeared bigger and brighter and how they could be rid of the darned thing!! The best answer I heard was from someone who suggested it might be possible to dispel the illusion that the moon was bigger and brighter by turning away from it, bending over and looking at the sky from between your legs!
While we are on the subject of stellar matters, last week saw the announcement that the next Deputy President of the Supreme Court is to be Lady Hale. Currently the only female member of the court ( and disgracefully, the only one to date, whereas three of the current members of the US Supreme Court are women, one third of the total) Brenda Hale has been a leading proponent of fairness between the sexes and has on occasion been prepared to air her views on the subject forcefully in public. I heard her do just that about 18 months ago at a law lecture at the University of East Anglia organised by my wife, where Lady Hale was the star speaker. Sadly she turned down my suggestion that the talk should be entitled “The Supreme Court? Women need not apply!”
So congratulations to Lady Hale. 
However, she did not have all the limelight. Her boss, the current President of the Supreme Court Lord Neuberger, also made headlines with his speech on the impact of the further cuts in legal aid recently announced by the Government.
Speaking at the Institute for Government, Lord Neuberger said that legal advice was ‘beyond the means of most people’ for three reasons: legal services were ‘expensive’; court procedures were ‘not always proportionate’; and money for legal aid was ‘scarce’.
‘The duty to face up to these problems does not just lie with the Government,’ he told the Institute; adding that the Government’s legal aid bill ‘increased very substantially’ between 1965 and 2000 ‘but it has been cut since then, and the Ministry of Justice is now, regrettably, if unsurprisingly, proposing a significant further reduction’. ‘There is a fundamental public duty on the government, and also on the legal profession and the judiciary to work constructively together with a view to best maintaining access to justice in the face of the harsh realities of government finances.’
Lord Neuberger flagged up judicial initiatives to make court procedures ‘more efficient and proportionate’ such as the Lord Justice Jackson’s reforms and David Norgrove’s family justice review. But, he said, ‘more radical solutions’ might be required: ‘such as dispensing with disclosure of documents and cross-examination, even with an oral hearing, in smaller cases: better to have a judge’s summary decision quickly at proportionate cost, than a disproportionately delayed decision at exorbitant cost, or no decision because it is too expensive to get to court’. ‘We may well have something to learn from on-line dispute resolution on e-Bay and elsewhere,’ he said.
Gasps of wonder and awe there may have been wherever there was a clear sky and the Super Moon was visible, but I detected a noticeable shudder from the massed ranks of the legal profession at the idea that eBay justice might take its place alongside Tesco Law.
Disclosure is an expensive and time consuming part of the litigation process in this country and arguably even more so in the US. It has been part of both systems for a long time. Thirty years ago, when we still called the process “Discovery” it was described by Lord Keith of Kinkel in Harman v Secretary of State for the Home Department [1983] AC 280 at 300 in the following terms:
‘Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant’s affairs. It forms part of English legal procedure because the public interest in seeing that justice is done between parties is considered to outweigh the private and public interest in the maintenance and confidentiality. But the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of seeing that justice is done’
The Super Moon may have gone past its perigee and will doubtless soon be at its apogee, but are we about to see the end or possible curtailment of disclosure in English civil cases? Lord Neuberger is challenging us all to look closely at the balance between necessity and proportionality by questioning one of the cornerstones of the litigation game.
If disclosure were to be abandoned, that would be some stellar change!