In recent years scholars have become increasingly concerned with the impact of the ‘vanishing trial’ on common law civil justice systems that rely heavily on precedent. This article updates previous accounts of the vanishing trial in England and Wales, showing that the rapid decline which prompted earlier debate has levelled off. This provides an essential backdrop to the discussion of the production of precedent which the article goes on to discuss. The final section of the article contests the assumption that vanishing trials lead to a decline in precedent, drawing on a collation and analysis of seventy years of government data on civil litigation cases. It shows that, despite contra-predictions, the number of appellate court judgments has increased while cases coming into the system and proceeding to trial have decreased. Further, it considers what House of Lords and Supreme Court data reveal about demand for precedent and the sort of cases that are taking up a greater proportion of Supreme Court time in the twenty first century.
Mulcahy, Linda and Teeder, Wendy, Are Litigants, Trials and Precedents Vanishing After All? (April 20, 2021). Modern Law Review, forthcoming.