The idea of proportionality in dispute resolution

Abstract

This article compares the ways in which the idea of proportionate dispute resolution has been dealt with in three recent reports: Lord Woolf's Reviews of the Civil Justice System (1995 and 1996), the Department of Constitutional Affairs' White Paper on ‘Complaints, Redress and Tribunals’ (2004) and the Law Commission's Issues Paper on ‘Proportionate Dispute Resolution in Housing’ (2006). The first of these reports adopts a ‘top‐down’ approach in which procedural judges allocate cases to one of the three streams in terms of the size of the claim, its complexity and its importance while the second report takes a ‘bottom‐up’ approach in which complainants decide what sort of remedy they want and, thus, what set of procedures they should use. The third report suggests that there is a ‘third way’ and the article examines the principle of ‘triage plus’ and the ways in which this principle could promote informed choice. It analyses the Law Commission's proposals for implementing ‘triage plus’ and concludes by questioning whether policy makers are ready to make a reality out of their enthusiastic embrace of the principle.