We have dangerously grown accustomed to accepting and tolerating court delays with the consequence of delaying justice and, worse still, denying justice. The situation now appears to be verging on the scandalous as cases, be they civil or criminal, are even taking longer to have them decided. To date, the average time it takes to conclude a money laundering court case in Malta continues to be the longest in Europe according to the latest EU Justice scoreboard report.
For quite a long time now, judges, lawyers, and policymakers in our country have experimented with ways to speed up the processing of civil and criminal cases. Several lessons should have emerged from this effort but, save for a few effective measures, it seems that stakeholders have hardly budged from the starting line. The only tangible evidence is that some magistrates and judges have reduced delays in criminal proceedings while a few others have sped up the processing of civil cases as well. But in the majority of cases, the time one has to wait to have them decided is becoming unreasonably longer than ever before.
Judicial reforms during the last few years have failed far more often than they have succeeded. Technical solutions such as appointing more judges, increasing hall usage and reforming cumbersome procedures, when used alone, have proved ineffective. A proper and full analysis should reveal how the interests and incentives of judges, lawyers, clerks, and litigants interact to create delays, providing a basis for more effective reforms. But the success of such reforms depends on support from the Chief Justice, senior judges and pressure from the central administration and civil society.
Our reformers have been glossing over problems of governance and power within our judiciary. For years their conventional wisdom was that court delay was a result of too few judges and court staff, manual rather than automated processes, archaic procedures, and a lack of expertise. Their traditional prescription for reducing delays called for technical fixes, appointing and training more judges and support staff, setting up specialised courts, introducing computer and information technology, and reforming procedures.
It should be clear by now that such remedies are failing to reduce delays, and one must start looking behind the formal structure of the courts to examine how judges, lawyers, and clerks work together to conduct the courts’ business and how their interests and incentives interact. Facts are facts, and today it is taking shockingly long to resolve simple cases and longer still to enforce the resulting judgment.
Court delay is costly, to the parties to the case and to society as a whole. The lapse of time between the filing of a case and its resolution lessens the chances that the dispute will be justly decided. Witnesses may die or disappear and memories can fade. Frustrated by long waits, parties may abandon the effort to vindicate their rights. Delay undermines public confidence in the court system and in government itself.
There are economic consequences as well. Businesses are reluctant to trade with parties they do not know, fearing that if these individuals breach a contract the business will be without a remedy. Banks hesitate to lend to new enterprises out of concern that if the borrower defaults, resorting to the courts will be futile. Applicants wrongly denied government benefits or permits must wait years for court review of the bureaucracy’s decision. Furthermore, endemic delays undercut efforts to control corruption, for it robs the criminal law of its deterrent effect. If corrupt actors think they can evade consequences by delaying their case, they will discount the threat of punishment. Where court delays are severe, it thus makes little difference how stringent the penalties on the books may be.
We must therefore identify the interests and incentives facing the different actors in our court set-up, namely the judiciary, lawyers, and court staff/process servers. The judiciary’s main concern is job security and promotion. Lawyers seek to maximise fees from current clients and attract new clients. Court staff and process servers are interested in earning unofficial fees, including the occasional bribe, for various services to supplement their meagre salaries.
On paper, judges are all-powerful. They control the scheduling of cases, and they can sanction or even jail lawyers who defy them. Court staff, too, are under their control. These powers theoretically allow judges and magistrates to reduce delays by scheduling cases expeditiously, denying requests to continue a proceeding, holding lawyers who drag out cases in contempt and disciplining court staff who slow down the process. The reality out there, however, is totally different. The judiciary is at the mercy of lawyers and court staff. If the judges have every reason to speed up the processing of cases, the lawyers and court staff have every reason not to. Delay boosts their income. Lawyers demand remuneration for each appearance, even if the appearance is only to reschedule a case for a later date. Clerks may be tempted to “misplace” a file by a litigant wanting to delay a case. Process servers may equally be tempted by one side to claim falsely that the other party was not notified of a court date, stretching out the time to final resolution and adding to the courts’ workload.
A well-conceived delay reduction program can improve the quality of the justice system even if it ultimately has little effect on case processing times. However, no program can succeed without the active participation of those directly involved in administering justice. Courts are governed by a complex set of formal rules and informal practices. The judiciary, lawyers, and others who work in the court system know these norms far better than any outsider and can use this information advantage to defeat reforms with which they disagree. Bringing judicial insiders into the reform process is thus a crucial step in designing a successful delay reduction program.
Unless something soon is done we risk transforming our courts of justice into a monument of injustices.
Dr Mark Said is an advocate