Deciding on the Unknown: Can we handle the truth? (And do we even want to?)

by Joanna McCunn and Andrew Bell, University of Bristol Law School


In June this year, there was a revolution in the English court system. Under the Small Claims Paper Determination Pilot, some claimants seeking £1,000 or less lost the right to an oral hearing of their case. In pilot areas, only small claims involving a ‘significant factual dispute’ or ‘complex’ issues will be allowed their day in open court. If you are bringing a claim in the pilot area for something like a parking ticket, or flight delay compensation, or have another kind of low-value dispute with another person or company, you will not be able to have your argument presented in person. Regardless of your wishes, you will have to write your argument down and the judge will decide without anyone there.

As one commentator has noted, ‘this will affect the outcomes of cases’. The number of successful claims seems likely to tumble with only papers produced by the parties to assist judges in getting to the heart and the truth of the dispute. Even cases involving significant factual disputes or legal complexities will still fall into the pilot framework if parties cannot explain the issues clearly in their written submissions – a not-unlikely scenario.

These developments have attracted a degree of outrage. Is the courts’ purpose not to resolve cases as fairly and accurately as possible? No, argues the Master of the Rolls, Sir Geoffrey Vos. Apparently, in his best management-speak: ‘it is no longer appropriate to provide a one-size fits all litigation solution’. Rather,

‘every justice system has to cater for the types of people and entity who are entitled to access it… For small claims, the parties often want a swift cost-free resolution, without much caring whether the outcome is robust and dependable. In large disputes … the parameters will be different, and the parties may be prepared to invest time and money in achieving a more just and perhaps objectively correct solution.’

Some of these ideas might seem very surprising – even dangerous. The justice system is not necessarily interested in truth; its decisions don’t need to be dependable; and not all claims and parties can and should be treated equally. It seems particularly pernicious to suggest that truth is more important for the rich than those with only small claims.

Perhaps equally surprisingly, though, these ideas are not so new.

Let’s focus on trading away dependable truth-finding. There are many areas where legal systems are already happy, if discreetly, to sacrifice truth and accuracy on the altar of expediency. The quest for ‘truth’ in court is always mediated by the rules of evidence, but sometimes it is abandoned in a striking way.

Truth might be sacrificed for another noble cause; perhaps a broader sense of justice than the law might otherwise achieve. The trial of the ‘Colston Four’, for example, prompted discussion of the tradition of ‘jury nullification’. Juries have always had the right to return a verdict at odds with incriminating evidence, including in protest against unjust laws. Under the eighteenth-century ‘Bloody Code’, to take a well-known example, they could artificially value stolen goods at less than 12p to avoid capital punishment.

Sacrificing truth for mere expediency might seem less justifiable. However, many examples exist in cases of intractable factual uncertainty – cases where available evidence does not, and often cannot conceivably, provide a sufficient factual basis for the substantive rules of law to operate. This is an area where we are running an extended research project.

In some of these cases, the law may give up its attempt to make any kind of reasoned decision about the evidence and allow its decision to depend on chance. The Prussian Allgemeines Landrecht, a legal code promulgated in 1794, provided that if twins were born in an unknown sequence (e.g. a mother gives birth alone and dies shortly thereafter) and you needed to know which was older (for inheritance purposes), that sequence was to be decided by lots.[1] Equally, the allocation of plots of land to parties in conflict in modern-day Australia might end up being conducted, in the absence of any other apparent principle, on the basis of a coin toss.[2] (Of course, an election may also be decided on a coin toss.)

Such methods of decision are only likely to be favoured when the core need to reach a (any) definitive decision is deemed to outweigh the interest in ensuring, as Vos MR might say, ‘robust and dependable’ results. They may even fall out of favour after long use if perceptions about relative importance shift. Coin tosses were previously used to decide matters of such seriousness as football matches, but penalty shootouts are now more common. These methods therefore raise questions about what we value in society, or law, more broadly.

Complications in this value-balancing tale include whether any alternative method for reaching a decision is even available, and whether results are even plausible. These cases sit on a blurred spectrum, including instances where the law promotes known untruths, sometimes even impossible untruths, and sometimes even where further factual investigation is possible.

Take, for example, the problem of commorientes, which arises when it is unclear which of two people has outlived the other. In many European legal systems,[3] the two are treated as if they died simultaneously, although simultaneity is at best the most unlikely or even an impossible option. Here, the interest in resolving cases efficiently and predictably outweighs the interest in accurate solutions. Policy-based reasoning on preferred results dictates the exact terms of the tiebreaker.

Some rules stray even further, into the realm of obvious fiction. For example, suppose A murders B, whose will leaves money to A. Under the forfeiture rule, A cannot inherit. For the purposes of inheritance law in England and Wales, this takes effect through fact-distortion: A will be treated as if they had died immediately before B. This mechanism enables the law to stop A inheriting without impacting on A’s children – they might still benefit from B’s will. Here, the law tells an obvious, knowing untruth in the broader interests of justice – not punishing A’s children for A’s crime.

In short, then, the principle is conceded: any vision of a justice system based on an uncompromising quest for truth in robust fact-finding is to some degree a fallacy. While the ideal is, of course, unachievable, we in fact often go further, to the abandonment of the pursuit of the ideal in the course of a balancing exercise with other aims. Time, money and effort might not be best expended in ever-diminishing returns where simplified heuristics are ‘good enough’, or secure other goods than truth instead. Our research investigations explore the different factors that may need to be balanced here, and demonstrate that our approach to these decision-making problems reveals far broader-reaching questions in our legal system. An ‘incorrect’ decision might be a legitimate, deliberate choice and not a corruption.

Of course, whether the value of a claim is a sensible proxy for the importance of its being resolved with accuracy is another question entirely. If Vos MR is right, ‘factual disputes as we know them will become almost entirely a thing of the past’ anyway, as the details of transactions, and even car accidents, are ‘indelibly recorded’ on blockchain. But until such time, society must grapple for its decision-making frameworks with the question of what, and who, judicial decision is really for.

[1] I 1 §16 ALR.

[2] Moll v Noblett [2009] VCAT 353; we are grateful to Richard Antill for the reference, posted on a previous blog.

[3] E.g. Austria: § 11, Todeserklärungsgesetz 1950 (Declarations of Death Act).

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