THE PITFALLS OF THE INQUISITORIAL SYSTEM

Access to justice and participation of citizens in the justice process, i.e. its acceptance by the society is one of the pillars of the rule of law. In view of the HMCTS' court modernisation programme, a comparison of the adversarial and the inquisitorial systems might be of interest, taking Germany as an example of an inquisitorial system.

I would like to address the following four issues in this context, that I consider to be particularly telling.

It is submitted that the German inquisitorial system is tailored to small-scale civil disputes with no complex facts, which can be time- and cost-efficiently sized up by a fair-minded judge with relevant experience. It is a system that consciously favours public regulation over private autonomy and provides access to justice by means of relatively rough tools.

The English civil adversarial system is a sophisticated and highly balanced structure that in my view shouldn't be ‘diluted’ due to cost issues. In particular against the backdrop of the Brexit, such a high-quality (export) good deserves less of a shift towards the inquisitorial system (that might substantially damage it) and more of a careful reform focused primarily on the issue of costs. Thought might be given in this context to the abolishment of cost-shifting or introduction of caps for particular cases or tracks.