A frequent saying among jurists is that “justice should not only be done, but be seen to be done”. This saying comes from a decision handed down by Lord Chief Justice Hewart in R v Sussex Justices ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233). This is often taken to mean that the appearance of bias is enough to overturn a judicial decision. But I believe it could also be used to support the principle of open justice: the principle that states that the legal system should be characterised by transparency. Open justice is supported by many in the judiciary. However, in my view, it is not open enough. And this deficiency in openness is a significant reason why the court system continues to face a structural issue of a backlog in cases. In the English legal system, simply speaking, at the end of a hearing or trial it might be said that there is a winner and a loser. Of course, the emphasis here is on “simply speaking” because a loser might face a loss less grave than what he or she ought to have faced were it not for the efforts of him or her or their legal representative. But nevertheless, there is typically a winner and a loser. This distinction is how the judge determines the issue of who should pay costs: the loser in the case pays the legal fees of the winner in the case. This is known as costs-shifting and is also sometimes described as the “English Rule”, in contrast to the system that prevails in the United States. Yet, in the English legal system, outside parties to the case do not usually know who won or who lost. This creates a problem that leads to the courts system being structurally clogged. If potential litigants (either the Claimant or the Defendant) knew that a certain judge tended to make decisions in a certain way, they would be able to make more accurate estimates on their probability of winning and in so doing make a better decision on whether to proceed with a case. If they were confronted with the likelihood of losing a case, they would likely discontinue their claim by making use of a Part 36 Offer to Settle or some other alternative means of settlement, thereby dropping out of the backlog and leaving the Court free to use resources elsewhere. In the absence of this data, what we as economists would call asymmetric information, the court system faces a tendency for a backlog in cases because people have what is known in the literature as the “overconfidence effect”. This is the term that describes the phenomenon of people consistently overestimating their competence in something or their ability relative to that of others. The most famous example of this is a survey by Swedish psychologist Ola Svenson that asked 81 American and 80 Swedish students to rate their driving ability to that of their peers: 93% of the American students said their driving skill was better than average, and 69% of the Swedish students said the same. Obviously, this is absurd. The finding in different cultures speaks to the overconfidence effect being a universal trait. In our legal system, people tend to overestimate their prospects of winning, as do their legal representatives. Whilst COVID-19 has exacerbated the backlog in court cases, the courts system has faced court backlogs even prior to the pandemic. A big part of this is because of the absence of concrete data on how particular judges tend to judge. If parties knew that a certain judge tended to make certain decisions, they could more concretely determine their probability of winning their case and act accordingly. Furthermore, even if they did wish to proceed with a case, they could determine how best to efficiently allocate their time: cases with relatively low probabilities of success would push litigants in person/their legal representative to dedicate more time to studying the available case law and vice versa: cases with relatively high probabilities of success would push litigants in person/their legal representative to dedicate less time to studying the available case law. This would lead to a minimisation of costs, which is the overriding objective set out in the Civil Procedure Rules 1.1: “These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at a proportionate cost”. Making the decisions of how certain judges make decisions could also lead to a creation of jobs. Betting firms, which are rightly excoriated for their involvement in sports, could be put to good social use by providing parties with statistical data on the likelihood of winning their case, in the same way transcription services exist and employ people to transcribe hearings or trials. Applying open data to the justice system would continue the legacy of former Prime Minister David Cameron. He made great strides in making data about the government open to all, in what some have described as a “transparency revolution”. The judicial system would be made more effective by also applying the principles of open data to it. To my knowledge, Britain (or, more accurately, England and Wales) would be the first country in the world to do this, representing an innovation in how justice works and is applied.
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