Reforming civil procedure : trends in continental europe and england and wales

Abstract

This research involves the timeless question regarding the effective improvement of access to justice. The problems pertaining to access to justice, especially in respect of litigation, have been experienced and exposed in several jurisdictions across the world and has become known as the battle against costs, delays and complexities. The goal shared by most jurisdictions is to give all individuals the right to have his or her legal dispute resolved by a judicial entity at a proportionate cost and in a reasonable time. South African authors have made several suggestions in respect of reforming civil procedure in order to combat the problems identified above, to reduce the backlog in our courts and, ultimately, to enhance access to justice for all.

This research aims to find solutions by investigating different categories of civil procedural reform and by identifying which categories could serve as beneficial and prospective reforms for South African civil procedure. Accordingly, trends in civil procedural reform in Continental Europe and England will be investigated. Three countries have been identified for comparative analysis: England, the Netherlands and Belgium. Within each of these countries two trends have been identified, namely (1) case management, pretrial protocols and the distribution of powers between parties and judges; and (2) digitalisation, modernisation and computerization of procedural rules. A chapter will be allocated to each trend, briefly describing the manner in which the procedure functions and its recent development, comparing and contrasting the situation with the South African position.

In conclusion, it will be considered in what way South African jurisprudence could benefit from the comparative analysis and identified reforms. The new developments in South African civil procedure relating to the specific categories of trends will further be investigated and discussed.