Vanishing Trials? An English Perspective

This paper reviews the recent history of civil litigation in England and Wales. While previous work, by Kritzer , has shown an absolute decline in trials over the last fifty years, with some fluctuation around this trend, we suggest that this may now have bottomed out. Given the evidence of a simultaneous, and continuing, decline in the number of claims filed, it may even be the case that trials are, at least temporarily, playing a larger part in the civil justice system than they have for many years. In contrast to the US experience, these changes seem to be intended, and unintended, consequences of deliberate policy decisions by government and senior judges, which have changed the options and incentives for other stakeholders. As such, it is important to be cautious about the extent to which comparable trends in countries with comparable common law jurisdictions have comparable explanations. In particular, we shall argue that the English experience should not be seen as a simple indicator of the ?Americanization? of English law or English disputing culture. Nevertheless, Galanter?s concern for the wider social implications of a declining trial rate also has relevance to the UK and its jurisdictions.