How do we tread the line in our law between continuity and change? How do we ensure that the law is on the one hand certain and predictable but on the other hand flexible and responsive? For centuries these questions have been confronted by the judges of the court system of England and Wales. In Justice: Continuity and Change, Lord Dyson describes the answering of these questions as “one of the most difficult challenges facing an appellate judge” and, in a collection of essays written throughout his appellate judicial career, Lord Dyson gives insights into how he addressed this challenge in the cases before him. Lord Dyson sat as a judge of the High Court, the Court of Appeal, the UK Supreme Court, and ended his judicial career as Master of the Rolls. The cases he presided over ranged from human rights to construction law.

One of the aims of Justice: Continuity and Change, is to “give a fair idea of my worldview and the kind of lawyer I am”. In the essay “Are the Judges Too Powerful?”, Lord Dyson writes: “some judges are more conservative than others. Some are cautious and prefer to paddle in the warm and safe shallows of clear precedent. Others are more adventurous and are prepared to give it a go in the more treacherous waters of the open sea.”

A survey of the book suggests that it is the latter category into which Lord Dyson falls, something made clear from the very outset by what he calls his “brave” and “unusual” move in 1986 from a successful practice as a barrister in predominately construction law to a more diversified practice. This adventurous approach appears, for the most part, not to be adventure for adventure's sake. It is a product of Lord Dyson's approach to the disposal of legal disputes through close, precise and targeted legal analysis. Lord Dyson remarks that judges “are not academic lawyers. They decide the cases that are before them for determination”.

For instance, Lord Dyson wrote one of the majority judgments of the Supreme Court in Jones v Kaney [2011] UKSC 13, [2011] 2 A.C. 398. The change effected by this decision was the removal of the common law immunity accorded to expert witnesses for breach of duty of a duty of care in tort. The principal reasons for this change were that “the immunity could no longer be justified in the public interest” and the fact that the similar immunity accorded to advocates has been abolished. Lord Dyson himself describes this decision as an “adventurous” one given, inter alia, the absence of any survey or consultation into the consequences of removing the immunity. However, given the lack of “value” to the Supreme Court of such survey or consultation and that the immunity was “a creature of the common law … having given birth to this child, it was the duty of the judges to decide whether it had outlived its useful life”. The approach of Lord Dyson, and indeed the other judges in the majority, contrasts with that adopted by Lady Hale in her minority judgment. Lady Hale took an ostensibly more academic approach, considering in greater detail the wider consequences of the adventurous approach, which she felt would be impossible to quantify and, thus felt the issue was one better left to the Law Commission.

Lord Dyson's approach could be seen to contrast with that which he and Lord Neuberger adopted in a joint judgment in Beghal v DPP [2015] UKSC 49, [2016] A.C. 88. Lord Dyson formed part of the majority which found that the exercise of powers under Sch. 7 to the Terrorism Act 2000 did not infringe Articles 5, 6 and 8 of the European Convention on Human Rights. Part of his analysis, guided by case law on the issue, involved considering the “modus operandi” and “how the system actually works in practice”. In practice, the Sch. 7 powers were rarely used, had led to terror related convictions and were “an essential ingredient in the fight against terrorism”. This approach, which led to the judgment engraining continuity in the law, in the sense of denying a challenge to a statute, at first glance seems closer to that of Baroness Hale in Jones v Kaney, in that it places seemingly determinative weight on considerations outside of the case before the tribunal. Lord Dyson says of the pragmatic and heavily fact-sensitive analysis he ultimately adopted in Beghal, “to a lawyer schooled in the crucible of the common law, this may well seem unprincipled and unsatisfactory. But Strasbourg often adopts a pragmatic approach and that is what it did here”. It seems that Lord Dyson only departs from his approach of disposing of legal disputes through close, precise and targeted legal analysis, and took broader considerations beyond the case before him for determination into account, because he was obliged to do so as a matter of law. Lord Dyson's approaches in Beghal v DPP and Jones v Kaney are therefore consistent.

In the essay “Liability of Public Authorities in Negligence”, Lord Dyson discusses the main judgment in Rowley v Secretary of State for Work and Pensions [2007] EWCA Civ 598, [2007] 1 W.L.R. 2861, of which he was the author, which continued a line of authority which militated against imposing duties of care on public authorities. In this case, the Court of Appeal decided not to impose a duty of care in negligence on the Child Support Agency when acting to assess, collect and enforce child support maintenance payments in respect of non-resident fathers. As in Jones v Kaney, Lord Dyson grounds his disposal of the appeal on a close, precise and targeted analysis of the law; “a common law duty of care would be inconsistent with the statutory scheme. That is a sufficient reason for dismissing this appeal.” While Lord Dyson goes on to consider other broader reasons in support of denial of a duty of care, namely that any complaints could be made to an ombudsman and the likely sums recovered would be relatively small, the heart of Lord Dyson's judgment is a close legal analysis of the legal case before him for determination.

Lord Dyson's approach, based on close legal analysis rather than broader philosophical evaluation, also contrasts with the approach of some other judges, notably Lord Hoffman. In describing one of his own cases extrajudicially in a speech delivered in 2009, Lord Hoffman suggested that the denial of duties of care on public authorities was based on “the unsuitability and huge expense of court procedures for inquiring into the administration of public bodies”. Lord Dyson implies that this is not how he approaches the issue as he wryly describes this as “convincing enough at a fairly high level of abstraction”. Indeed, Lord Dyson states that he has to “confess” to being the author of the judgment in Rowley perhaps because broader considerations formed part of his analysis of the case (albeit a small part), and in doing so reached a conclusion (that no duty should be imposed) that was consistent with this alternative approach to the issue.

Given Lord Dyson's appointment to the office of Master of the Rolls, an appointment which is accompanied by appointment to Chair of the Civil Procedure Rule Committee and the Civil Justice Council, it may be unsurprising that some of his most adventurous proposals for change relate to procedural rules of law and policy. One of these proposed changes relates to harnessing modern technology in the court system. Lord Dyson notes “we have not yet fully realised the benefits that the IT revolution can bring to our system of justice”. He suggests that court documents, and some procedural applications, should be filed and managed electronically and it should be possible to develop online dispute resolution. Another, driven by the increasing numbers of litigants in person, involves the “re-apprais[al] [of] some of our long-standing traditions”, including “our continuing commitment to the traditional adversarial process”. The adversarial process is to some extent premised on the parties having legal representation. A move to an inquisitorial process may better cater for litigants in person who could be more readily assisted by the judge. An alternative or additional proposed change to address the issue of litigants in person is to permit trainee advocates to advise and represent litigants in person. Lord Dyson himself describes either course of action as a “radical departure”.

The first of these proposals for change, relating to greater use of technology, is coming to fruition through the development of the “Business and Property Courts of England and Wales” in place of the long-standing traditional and separate Commercial, Technology and Construction and Chancery Division Courts. These new courts will provide inter alia for the filing of claims electronically, greater regional engagement and the easier sharing of judicial expertise. Lord Dyson very much seems to have anticipated the appetite to harness modern technology and processes to maintain our jurisdiction's competitive edge internationally in dispute resolution. However, it seems that Lord Dyson's extremely adventurous proposals in respect of litigants in person, on the other hand, to use the metaphor quoted above, are themselves becoming imperilled in the more treacherous waters of the open sea. The proposals would seem not to chime with the recent Court of Appeal authority, Ogiehor v Belinfantie [2018] EWCA Civ 2423, (2018) 6 Costs L.R. 1329, in which it was stated (at [44]):

The conception of justice pursued by Lord Dyson to navigate the line between continuity and change is one based on rigorous, close and precise analysis of the legal issues before him, unless other broader considerations need to be brought into account. This approach leads to, for the most part, decisions which although perhaps adventurous are not adventure for adventure's sake. It is an approach under which judges “decide the cases that are before them for determination”. Justice: Continuity and Change showcases a demonstrably strong approach to the judicial role across a rich spectrum of law in this jurisdiction and others.