More Justice, Less Money?
Government resources are dwindling. Cases are increasing. Lawyers are too expensive. The rules of court are complicated.
"The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type."1
One solution? While it is not written anywhere but perhaps in the private attorney work product notes of public servants who monitor these things on behalf of their respective ministers of justice, one solution seems to be a greater reliance on administrative tribunals.
The Baby and the Bath Water
Supposedly, the basic rules of natural justice follow and apply to administrative tribunals. But there is one critical offshoot of audi alteram partem - that, if it follows at all, seems to be slowly disappearing and may need to be added to the endangered species list of law. That is the right of a person, individual or corporate, to an in-person oral hearing before whatever court or board or tribunal is hearing their matter, or making a decision which may affect their property or civil rights.
Tribunal bodies have budgets and schedules. There is no denying that desk decisions or office decisions - words used to describe a decision made only on the written material filed by the parties - cost a lot less than convening an actual oral hearing. Oral hearings mean more time for the decision-maker, a hearing rooms, technical equipment and galleries.
A disadvantage actually seen in some observed cases, is where a participant who pushes for an oral hearing will be taken as a nuisance by the tribunal member seized with the case. There is merit to the suggestion that such a nuisance may play on the decision-maker's mind as she or he declines the request and publishes their desk decision. Judges may be immune to this sort of petty influence but are tribunal decision-makers? One clear advantage of courts of law over administrative tribunals, and there are many, is that courts of law abide by the right to an oral hearing as if it were the Bible. That may be because God herself refused to levy a punishment on Cain for apparently killing his brother Abel, until He had first given Cain a chance to be heard, a story found in the Bible and the Koran [4 Genesis 1-12].
In Goldberg v Kelly, Justice Brennan of the United States Supreme Court stated the obvious when he wrote:
"Written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision-maker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision."
Conversely, for administrative tribunals, the process which guarantees or even affords an oral hearing appears to be the exception rather than the rule. As governments everywhere, in consultation with their existing administrative tribunals consider and create the rules of their various administrative tribunals, they ought to do so with the following expression of law in large letters on their meeting room whiteboard:
"... the central place accorded to oral argument in our common law adversarial system. This I think is important, because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by a judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the center of it."2
Proponents of natural justice will take that principle of law and run with it but there is another, far more important, generally, and especially to the litigants, and that is the option of an oral hearing. Only an oral hearing can allow for the proper challenge to be made against conflicting versions of the relevant facts, which is almost always the case:
"(A)n oral hearing is most obviously necessary to achieve a just decision in a case where facts are in issue."3
For judges who, from time to time, have the opportunity to comment on the right to an oral hearing, the situation is extremely difficult because imposing an oral hearing on all cases before administrative tribunals would raise the costs of justice exponentially. For the administrative tribunal administrator who cringes at the thought, these words are on her whiteboard:
"At common law, one is entitled to an oral hearing where fairness requires that there should be such a hearing, but fairness does not require that there should be an oral hearing in every case."
One would think, if not hope that the right to an oral hearing would be afforded any litigant, whether it be administrative tribunal or a court of law, who asks for it. But that is not the reality. The litigant who needs the labour relations board or any other such administrative tribunal to hear him or her for any number of reasons, is at the mercy of the tribunal itself as to whether or not she or he will get an oral hearing, even if asked for.
It is a gathering storm just barely perceptible over the horizon except by the most trained of eyes, who know what to look for. Yet there are lightning bolts and low rumbles of thunder of the coming storm of review of the justice system. And that review will include, as it already has, an increasingly greater reliance on administrative tribunals.
A growing number of citizens will unexpectedly receive a very significant legal decision on their rights or other legal interests in the mail, with no hearing whatsoever. This, even though they had asked for or expected an oral hearing, an opportunity to speak to the decision-maker. And of those, how many would have the technical wherewithal to seek judicial review on issue with the fine constitutional points involved in the right to an oral hearing? Throw in legal fees and rare is the individual in a position to move for judicial review.
It may be too late to reverse the current of justice system policy and what seems to be a discrete threat at the oral hearing. If there are ears to the ground, and wise women and men behind the wheels of justice, there can be new and creative ways to evolve or refine the existing justice systems, to include in the availibility of an oral hearing at all occasions. Oral hearings never diminish the quality of justice of an administrative hearing. On the contrary in some cases. Where the facts conflict or where a litigants asks for it, the absence of an oral hearing immediately raises issues of fairness. The affected party is faced with a decision-maker who looks at paper only, and makes the decision.
You would not want that from your doctor or car mechanic and certainly not from someone who will decide something that will follow you around for the rest of your life.
- Ewing & Ors, R (on the application of) v Department of Constitutional Affairs,  EWHC 504 - NOTE 4.
- Goldberg v Kelly, 397 US 254 (1970)
- NOTE 2: Sengupta & Anor v Holmes & Ors  EWCA Civ 1104
- NOTE 1: R v Secretary of State for the Home Department, Ex parte Doody,  1 AC 531
- Smith, R (on the application of) Parole Board,  UKHL 1. Also NOTE 3.
- Woolf and others, De Smith's Judicial Review, 6th Ed. (London: Sweet & Maxwell, 2007), page 324-325