Fury and feathers are flying in the genteel world of academe — and all over the civil justice system.

This week witnessed clashes between Lord Woolf, architect of the civil justice reforms of ten years ago, and Professor Dame Hazel Genn over the topic of her recent Hamlyn lectures, where she argued that the main thrust of civil justice reform was not about more access, nor about more justice. “It is simply about diversion of disputants away from the courts.”

Genn, Dean of Laws and Professor of Socio-Legal Studies at University College London, revisited her theme at a seminar this week hosted by UCL and had swipe at some of the misreporting and misinterpretation of her comments. She admitted that the content appeared to have struck “both chords and nerves”.

Clearly, she said, people held strong views about civil justice policy and practice. But debate has been “chronically hampered” by what she called “a lack of solid empirical evidence” and too much reliance on anecdote and assumptions.

So what had Genn said to cause such a stir? Recapping, she said that “in England, we are witnessing the decline of civil justice, the degradation of court facilities and the diversion of civil cases to private dispute resolution — accompanied by an anti-court, anti-adjudication rhetoric that interprets these developments as socially positive”.

A principal threat to civil justice, she argued, was the “unstoppable burgeoning of criminal justice” at a time of financial constraint, including the demands of human rights laws and costs of a growing prison population.

With one justice budget now under the Ministry of Justice, the importance of civil justice was obscured and its functioning undermined. Unlike any other common law system, the civil courts in England are self-financing, paid for by litigants. But, Genn noted, any surpluses generated from litigants are not invested in the civil courts: instead they are “redirected into the gaping maw of criminal justice”.

In her second lecture she had focused on the global preoccupation with mediation. She told this week’s seminar that her comments had been taken as an attack on mediation, even though she had emphasised that alternative dispute resolution (ADR) was “an important supplement to the court processes”.

“My intention,” she said, “was to raise questions about the place of ADR in civil justice; to ask why there had been such a strong push towards mediation by sections of the judiciary and to ask how, if at all, mediation contributes to access to civil justice, rather than simply constituting another form of private settlement.”

Increasing pressure was being put on parties to mediate after they had issued court proceedings. “Although this policy has been given an ‘access to justice’ label, it is, in fact, a strategy for diverting disputes away from justice.”

Mediation, she added, had little to do with access to justice — that is, access to the courts or to just outcomes. “Mediation is not about just settlements. It is just about settlement.”

Interest in ADR worldwide stemmed from a failure of civil courts to provide access to fair procedures — and so was a cheaper option for governments than trying to fix or invest in “dysfunctional” court systems, she added. It was, in effect, “an admission of defeat”.

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