The key messages of the speech by Chief Justice Sundaresh Menon delivered at the 26th Goff Lecture on 9 November 2021 are:
1. The “complexity problem” is the concern that there is now a growing class of disputes so factually rich and complex that they are virtually impossible to adjudicate fairly and properly.
2. It seems likely that the complexity problem will only intensify with time. Complexity seems driven at least in part by the advance of science and technology – as our understanding of the world has become more complex, so too have our disputes. Advances in information technology have led to an explosion in the quantities of data (and potential evidence) that adjudicators and advocates may be called on to consider.
3. Complexity can have serious consequences not just for the time and cost of resolving such disputes, but also for our ability to properly resolve them – some disputes are now so massive and complex that they have become extremely difficult for the adjudicator to fully and properly understand, much less decide. Information overload can result in poorer decision-making as adjudicators: (i) are unable to properly comprehend the evidence and the case; (ii) become more prone to making errors; and (iii) rely more heavily on heuristics.
4. Solutions directed at improving the efficiency of legal proceedings are, at best, only part of the answer. The problem is more fundamental, and requires that we reconsider our approach to the resolution of complex disputes. In particular, we might see a shift away from a narrow conception of justice as always and invariably requiring a full and exhaustive determination of the facts, to a more holistic view of what it means to adjudicate disputes – one that embraces procedures which, whilst not as thorough, are nonetheless capable of producing reasonably accurate and broadly acceptable decisions more quickly and at far lower cost, such as: Alternative Dispute Resolution (eg, dispute boards, statutory adjudication, mediation), representative sampling, adopting simplified adjudication procedures for certain lower-value claims, and, in time, the use of predictive technology.
5. The success of any solution will depend in part on stakeholder buy-in. Change will only come if there is general acceptance of the serious consequences that complexity can have on our ability to do justice. Counsel and litigants must genuinely believe that their best interests are not served by flooding the adjudicators with information. Adjudicators must accept that robust measures to contain the material before them may be required. Supervisory courts (in the case of arbitrations) need to understand these constraints and make sensible decisions when dealing with due process challenges against arbitral awards.
The full speech can be found here (PDF, 402 KB)