The adversarial system and prejudice | Feature

The adversarial system of justice is a defining feature of our legal system. In essence, it is based on the opposing parties engaging in a battle to convince the passive judge and jury that their version of the facts is the most convincing. In doing so, the parties develop and present their arguments, examine and submit evidence, question witnesses, and generally control the information presented according to the law and procedure. It is not open to the judge in an adversarial system to enquire beyond the facts and evidence that are presented by the parties. In comparison, the inquisitorial system is based on an inquiry into the case. The judge is not limited to hearing the arguments of the parties but can direct the lawyers to address specific points or to call particular witnesses.

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In Ali v Ismet Dinc and another [2022] EWCA Civ 34, the defendants contended that the judge at first instance decided the case on the basis of an arrangement that the claimant had not pleaded and had expressly rejected in cross-examination. As a consequence, the defendants argued that it was not open to the judge to decide the case in that way and in doing so the judge crossed the line which separates adversarial and inquisitorial systems. 

The authorities

The significance of the adversarial approach was explained by Dyson LJ in Al-Medenni v Mars [2005] EWCA Civ 1041, which was a claim for personal injuries suffered at work. At trial, the judge raised the ‘third man theory’ as to the cause of the accident was not part of the claimant’s pleaded case, it did not form the basis for the witness evidence, and was not explored with the witnesses in cross-examination. Nevertheless, in the judgment the judge adopted the theory and found the defendant employer liable. The Court of Appeal held that the judge was not entitled to find for the claimant on the basis of the unpleaded theory and allowed the appeal.

Dyson LJ explained what had gone wrong in terms of the contrast between an adversarial and inquisitorial approach: ‘In my view the judge was not entitled to find for the claimant on the basis of the third man theory. It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other. The function of the judge is to adjudicate on those issues alone. The parties may have their own reasons for limiting the issues or presenting them in a certain way. The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision. One consequence of this may be that the judge is compelled to reject a claim on the basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. Such an outcome may be unattractive, but any other approach leads to uncertainty and potentially real unfairness.’

In Sainsbury’s Supermarkets Ltd v MasterCard Inc [2020] UKSC 24, the Supreme Court cited with approval Dyson LJ’s judgment in Al-Medenni and also a related passage from Lord Wilberforce in Air Canada v Secretary of State for Trade [1983] 2 AC 394. The Supreme Court explained the aims of the adversarial system: ‘In the adversarial system of litigation in this country, the task of the courts is to do justice between the parties in relation to the way in which they have framed and prosecuted their respective cases, rather than to carry out some wider inquisitorial function as a searcher after truth.’

Birss LJ

Also, in Satyam Enterprises Ltd v Burton [2021] EWCA Civ 287 Nugee LJ explained what had happened at the trial when he said: ‘The present case however is not one of a party seeking to depart from his pleaded case, but one where the parties addressed in their evidence and submissions the cases that had been pleaded, but the judge decided the case on a basis that had neither been pleaded nor canvassed before him. In our system of civil litigation that is impermissible, and a misunderstanding of the judge’s function which is to try the issues the parties have raised before him. The relevant principles were stated by this court in Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041. There the trial judge had rejected the claimant’s pleaded allegation of how she had sustained an accident but nevertheless found the defendant liable on the basis of his own theory of what had happened (referred to as the “third man theory”), which had never formed any part of either party’s pleaded case.’

Reflecting on the authorities, Birss LJ (pictured) in Ali observed that the problems raised in them are all concerned with the interests of justice and, in particular, with circumstances which cause prejudice to the losing party. The common sort of prejudice which is to be avoided is that a new point has arisen in such a way that the losing party was not given a proper chance to call evidence or ask questions which could have addressed it. That is why the function performed by pleadings and lists of issues, to give notice of and define the issues, is an important one; but is also why a judge can always permit a departure from a formally defined case where it is just to do so. It is also why the judge’s function is to try the issues the parties have raised before them, rather than to reach a conclusion on the basis of a theory which never formed part of either party’s case.

Birss LJ explained the approach to be adopted by the court when he said: ‘By placing the emphasis on prejudice, the point I am making is that the modern approach to the definition of the issues requires judges to adopt a pragmatic approach in line with the overriding objective and not seek to be governed by unnecessary formality, provided always that it is just not to do so.’

Ali v Ismet

The claimant contended that there was a contract of sale with the first defendant for two properties and, in the alternative, the first defendant held the properties on constructive or resulting trust. Furthermore, the defendants contended that the transfer of the properties was part of an arrangement to gift them to the first defendant absolutely so that they could be used to raise finance for the claimant. The first instance judge held that although an agreement existed, neither party’s proposed arrangements were reflected in the evidence presented to the court. Rather, there was a clear intention between the parties that the two properties would be transferred exclusively for the use of raising funds which were to be transferred to the claimant which created a trust.

On appeal, the defendants argued that this was not pleaded by the claimant and had, in any event, been expressly disavowed in cross-examination. Birss LJ, giving the leading judgment, rejected the appeal. In his analysis of the issues, Birss LJ adopted the following three-stage approach: (i) identify what case or cases the parties were advancing; (ii) compare that with the decision the judge made; and (iii) if need be, the court identifies what prejudice, if any, may have caused the unsuccessful party. A judge is entitled to reach their conclusions as long as they are composed entirely of the acceptance or rejection of factual assertions which were pleaded by one or the other party.

Turning to the pleadings, Birss LJ found that the defendants had been given proper notice that they had to address the pleaded alternative trust case, despite the pleaded case being terse. Continuing to focus on the pleadings, the judge reached a conclusion which was open to the court. The most important findings of the judge (for example, the arrangement was unwritten, it was not a gift) were all matters which were either undisputed or were part of one or the other party’s pleaded case, and in reaching these conclusions the judge was also rejecting distinct parts of each party’s case, as she was entitled to do.

Birss LJ then turned his attention to the cross-examination and held that although a witness sticks to their primary argument, this does not mean that they have formally abandoned the alternative case advanced on their behalf. He also found that the claim was argued fully by counsel before the judge in closing, and therefore it could not be said that the defendants were ambushed or precluded from advancing submissions or evidence which they might otherwise have done. In conclusion, this was not a case in which the judge adopted an inquisitorial approach.

The decision provides a helpful reminder of the importance and nature of our adversarial legal system, and the essential functions and approach judges are expected to take when seeking to do justice. Although the decision also illustrates the need for disputing parties to carefully and fully plead the facts they intend to rely on, the court may take a pragmatic approach in line with the overriding objective, and may make findings of fact which could go beyond the pleadings and evidence given at trial. In doing so, the fundamental question for the court will be, as succinctly explained by Birss LJ, whether that results in any prejudice to the unsuccessful party, such that it is contrary to the interests of justice.


Masood Ahmed is an associate professor at the University of Leicester and research fellow on the Vici Affordable Access to Justice project, Erasmus University, Netherlands

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