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The sooner the better management of time in district courts
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International Journal of the Sociology of Law 33 (2005) 35–51
International Journal of the Sociology of Law www.elsevier.com/locate/ijsl
The sooner the better management of time in district courts A.J.G.M. van Montfort, P.O. de Jong, M. Herweijer, A.T. Marseille Department of Public Administration and Organization Studies, Faculty of Social Sciences, Free University Amsterdam, De Boelelaan 1081, 1081 HV Amsterdam, The Netherlands
Abstract The quality of the administration of justice by courts is being discussed in many countries. The lengthy duration of court proceedings in particular is considered to be a problem in the Netherlands. This article presents the results of a large-scale research project into the opinions of litigant parties concerning the duration of administrative court proceedings in the Netherlands. Research was also carried out into the influence on the duration of court proceedings as a result of both the conduct of litigant parties and the characteristics of district courts. There are a number of factors, in particular the presence of significant backlogs of unfinished cases at the district court that have been proven to be responsible for delaying court proceedings. This provides a starting point for the formulation of several recommendations to speed up court proceedings. r 2005 Elsevier Ltd. All rights reserved.
1. Introduction In recent years, rising doubts have been voiced about the quality of the Dutch courts and their administration of justice (Neerhof, 1994; Prisma, 1996; Commissie Leemhuis, 1998; Damen, 1999; Van der Doelen, 1999; Tragter-Schubert and Vlug, Corresponding author: Tel.: +31 205986917; fax: +31 205986820
E-mail address: [email protected] (A.J.G.M. van Montfort). 0194-6595/$ - see front matter r 2005 Elsevier Ltd. All rights reserved. doi:10.1016/j.ijsl.2004.10.001
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1999). The lengthy duration of court proceedings was considered to be one of the most important problems. Numerous ideas have been formulated in recent times to reduce the duration of court proceedings. In 2002, the average time for processing an administrative court appeal was 359 days. There are variations in the court proceedings process between the 19 district courts in the Netherlands. The quickest processing time was two and a half times quicker than the slowest processing time (Raad voor de Rechtspraak, 2003). Significant differences were also established in cases processed by one single district court (Marseille, 2001, pp. 434–436). Until now, very little empirical research has been carried out into factors that contribute to the duration of court proceedings. However, insight into the causes of the duration is required in order to draw up a policy for the reduction of the duration of court proceedings. The fact that there are differences in duration of court proceedings between district courts as well as within district courts suggests that causes can be found both at the district court organization level and at individual court proceedings level. Therefore, a study into both the characteristics of district courts and the conduct of litigant parties (plaintiffs and defenders) was carried out for our research project. Furthermore, there is no information available pertaining to the opinion of litigant parties concerning the duration of their court proceedings; is this duration in their view problematic or not? Dutch legal literature states the general need for quick and efficient court proceedings as an important premise. However, very little empirical research into the wishes of litigant parties concerning this matter has been carried out (Witteveen, 2002). Therefore, the satisfaction of litigant parties relating to the duration of their court proceedings has also been taken into account in this research project. The subsequent research issues were derived from the foregoing: How do litigant parties evaluate the duration of administrative court proceedings in the first instance? What is the relationship between the duration of court proceedings on the one hand and the conduct of litigant parties and the characteristics of district courts on the other hand? What can be done to decrease the duration of court proceedings? The term ‘duration’ of court proceedings refers to the period between the submission of an appeal by a plaintiff and a verdict pronouncement by the court. In other words, the entire proceeding is taken into account. The questions in the foregoing will be answered based on a large-scale research project carried out between 1999 and 2004.1 The research focused on administrative appeals pertaining to building licenses and also the enforcement of license stipulations. These appeals are heard by district courts. Only appeals in the first 1
The project consisted of a doctoral research that was executed by the second author of this paper and supervised by the other authors. The doctoral thesis was recently published (De Jong, 2004).
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instance were taken into consideration. Therefore no superior court appeals were included in this research. To begin with, general information relating to the organization of the Dutch judiciary system will be presented (Section 2), followed by statistical data originating from the national Council for the Judiciary.2 This data will be used to illustrate the lengthy court proceedings, in particular administrative court proceedings (Section 3). Subsequently, the most important elements of the theoretical model that was used and tested in our empirical research will be presented (Section 4). In relation to this, an outline of the data collection methods will be given (Section 5). The following section of the paper will be dedicated to an analysis of the opinions and conduct of litigant parties. There are two categories of litigant parties, namely, plaintiffs (citizen and companies) and defenders (local authorities). The initial focus will be on the satisfaction of both categories of litigant parties relating to the duration of administrative court proceedings (Section 6), followed by an analysis of the conduct of plaintiffs and the conduct of defenders (Section 7). The foregoing is the basis for establishing the influence of litigant party conduct on the duration of administrative court proceedings. The influence of certain characteristics of the district courts on the duration of court proceedings will also be taken into consideration when assessing the influence of the conduct of the litigant parties. This allows the value of the theoretical model to be established (Section 8). This article will be brought to a close with our conclusions pertaining to the aforementioned research questions. A number of these conclusions contain recommendations for decreasing the duration of court proceedings. There are sufficient opportunities available for use by district court managers in order to increase the rate of proceedings (Section 9).
2. Organization of the Dutch judiciary In addition to the legislator and the government, the judiciary is one of the three powers (forces) in our legal state. It is important that the judiciary is independent and unbiased in order to protect citizens (Prakke et al., 2001, pp. 535–538). The judiciary operates within courts of law. There are various courts of law in the Netherlands, for example the district courts, the courts of appeal and the Supreme Court. The need for independent administration of justice has consequences for the organization of the courts. The independence is not solely limited to the courts, but in fact extended to the professional independence of the judge in the capacity of government official (Langbroek, 1998). The district courts constitute an important part of the Dutch judiciary. Among other things, the district courts hear appeals pertaining to building licenses or the enforcement of license stipulations. There are 19 district courts in the Netherlands, distributed across various regional areas. 2 The Council for the Judiciary (Raad voor de Rechtspraak) acts as a link between the Minister of Justice and nearly every Dutch court. This national organization is charged with promoting good quality execution of judiciary duties by the courts.
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Within the court system judges are responsible for making rulings in conflicts that are brought before them. All district courts have a sector structure. Each sector deals with appeals from a specific branch of law, including administrative law, civil law and criminal law. There is also always a sector for ‘minor cases’. There is an administrative law sector in all district courts. The primary function of the administrative law sector is making rulings for appeals submitted against public authority decisions. Two types of support are provided for the judges in relation to the execution of this primary function, this support is incorporated in the sector. The administrative support, also referred to as court registry or administration, carries out tasks such as processing correspondence and collating case files (Slothouber, 1998). Although this relates to administrative actions, a limited level of legal knowledge is required in order to carry out this task properly. In addition to this there are a number of employees, for example, clerks and staff lawyers, who support the judge in the decision-making processes concerning the appeals. This group is known as the judicial support. This often relates to lawyers who take over a significant part of the preparation work from the judges (Prisma, 1996). In this way judicial supporters—under the responsibility of the judge—execute a significant part of the groundwork of the decision-making processes.
3. The problem of slow administration of justice In the Netherlands, the long duration of court cases is considered to be a bottleneck in the operation of administrative law (Commissie Leemhuis, 1998, p. 4). However, the following comments must be made in relation to this. Parties only experience a lengthy waiting time for a ruling in specific sub-areas. The problem of slow administrative law occurs in almost all fields of administrative law and a number of civil law fields. This is shown in Table 1. A recent investigation was carried out into the long duration of proceedings that was ascertained within the civil law system (Eshuis, 1998). The duration of proceedings in the criminal law system is short in comparison to administrative law and civil law; however, this is still thought to be a problematic issue. Rapid punishment would be beneficial to the credibility and the reprisals (Knigge, 1998, pp. 53–57). This gave rise to various tit for tat experiments, for example, the Arrest and Issue project (Meinderts and Van Rest, 1998).3 There seems to be less clarity with respect to the problems relating to the long duration of court proceedings in administrative law in relation to the other law sectors. With an average processing time in 2001 of approximately 1 year, the administrative law courts are faced with a problem that must be investigated. This is the reason why this research focuses on administrative law. 3
However a number of investigators are of the opinion that the predicted positive impact of a rapid ruling on the specific and general prevention is non-perceivable (Bosker, 1997).
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Table 1 Duration of proceedings in the first instance (2001) expressed in number of calendar days Court
Type of case
Duration 2001
District court, Civil sector
Commercial matters with defense Commercial matters without defense Rulings in reaction to petitions Bankruptcy Divorce cases Rulings in reaction to petitions concerning juvenile matters Other family matters (e.g. adoption) Summary proceedings
323 41 45 — 104 35 148 49
District court, Administration sector
Administration matters Temporary arrangements (provisional relief) Alien affairs matters
373 45 —
District court, Criminal law sector
Criminal law cases (processed by several judges) Elaboration of sentences for the benefit of superior court proceedings (processed by several judges) Police court matters, incl. economic offences (processed by one judge) Commercial matters with defense
124 114a
District court, Sector for ‘minor Cases’
Court of justice
Commercial matters without defense Family law matters Summary proceedings Criminal law matters (violations) Tax matters
71a 66a 13 27 30 43 527
— Missing data. (Source: Raad voor de Rechtspraak, 2003). a This is the average processing time for matters that were processed up to August 2001.
4. Theoretical model Two various theoretical approaches were used in this research: the rational choice approach (or rational choice theory) and the system approach. For each approach a number of factors were highlighted that according to the theory may be influential to the duration of a proceeding and the satisfaction of litigant parties with this duration. 4.1. Rational choice approach: opinions and conduct of litigant parties The rational choice approach was used first. One of the basic premises is that the difference in duration of procedures within courts is caused by differences in conduct of litigant parties (Ten Berge et al., 1996, pp. 292–294). The premise is made that all litigant parties are rational actors. Some parties may prefer a ruling in an early stage of the proceedings while others prefer a delay. This is known as the time preference.
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There are two reasons why a party wishes to commence a court proceeding. It may be in her interest to win the case, however, she may also have a special interest in delaying or speeding up the governmental decision-making process (Commissie Van Kemenade, 1997, p. 42). A party may be motivated by either of these two preferences (Dijkstra, 1999). The intention of certain conduct of a litigant party may be to increase their chance of a successful proceeding, other conduct, however, is used to achieve a postponement or acceleration of the proceeding (Ten Berge et al., 1996, p. 294). Litigant parties are expected to adopt the most suitable conduct in relation to both their time preference and their chance of winning the lawsuit. This conduct may have an impact on the duration of the court proceedings, regardless of the underlying reason; wining the appeal or delaying the proceeding. In relation to the level of satisfaction concerning the duration of the proceeding, it is plausible that litigant parties will be satisfied with a duration that corresponds with their time preferences. The application of the rational choice approach ultimately resulted in a number of elaborate theoretic insights. These insights form the first part of our theoretical model (De Jong, 2004, pp. 49–67). In this paper, use is made of a somewhat simplified version of the first part of the theoretical model. The simplified version is shown in Fig. 1. 4.2. System approach: characteristics of a district court The second theoretical approach can be denoted as the system approach. This approach can be used to predict delay caused by management characteristics of the district court (Koster, 1999; Tragter-Schubert and Vlug, 1999; Van der Doelen, 1999; Ten Berge, 1998, Graat, 2001; Van Ettekoven, 2001). Use was made of the ‘workflow management’ theory to identify factors (Van der Aalst and Van Hee, 1997). The basic assumption made in this approach was that the duration of a court proceeding is determined by the time judges and administrative workers actually devote to working on the file (work) and the time taken until the commencement of the next phase in the operation (wait). The time factor for waiting is dominant in many organizations and it is expected that this is also applicable to district courts (Koster, 1999, Tragter–Schubert and Vlug, 1999). Waiting times in court proceedings may be due to a significant stock of old cases related to the number of judges and other staff members (Ten Berge et al., 1996, p. 291; Commissie Leemhuis, 1998, pp. 19–21; Van Ettekoven, 2001, p. 28). The application of the system approach also resulted in a number of elaborate theoretical insights, which makes up the second part of our theoretical model (De Jong, 2004, pp. 69–80). A somewhat simplified version of the second part of the model is given in Fig. 2. The research findings presented further on in this article show that the causal relationships presumed in the theoretical model are realistic to a significant extent. The aspects relating to the opinions and conduct of litigant parties and organizational characteristics of district courts that are included in our theoretical
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Estimated chance of winning the lawsuit
Time preference
Conduct in order to achieve time preference
Conduct in order to win the lawsuit
Duration of proceedings
Satisfaction with duration of proceedings Fig. 1. Duration of proceedings (and satisfaction of litigant parties about this duration) influenced by the conduct of parties (Source: De Jong, 2004, p. 50).
Stock of old cases in relation to the number of judges and other staff
Work
Wait
Duration of proceeding Fig. 2. Duration of proceedings influenced by organizational characteristics of the district court (Source: De Jong, 2004, p. 73).
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model appear to have a true influence on the duration of court proceedings and the satisfaction of litigant parties about this duration.
5. Data collection Data was collected from seven of the 19 district courts. The seven district courts vary with regard to both the size and location of the court. Data was collected from these seven district courts relating to opinions and conduct of litigant parties and also data pertaining to the organizational characteristics of the district court. Regarding the part of our theoretical model that relates to the opinions and conduct of litigant parties, both the plaintiff and the defender were interviewed in 93 cases (lawsuits). These interviews were held between the hearing and the verdict pronouncement in order to avoid biases relating to the outcome of the lawsuit. Following the ruling, case files were examined in order to collect more specific information. The data collected from the interviews and the files were jointly analyzed (De Jong, 2004, pp. 81–92). All of the defenders approached for this research were willing to co-operate. The willingness of the plaintiffs on the other hand was lower; replies were only received from one-third of the approached plaintiffs. Because of this, corporate bodies, plaintiffs with professional legal aid and plaintiffs who had constructed without a permit were underrepresented in the sample survey. Therefore, the results of this study solely apply to district court proceedings with natural persons and small corporate bodies (De Jong, 2004, pp. 89, 92–96). An additional document analysis was carried out pertaining to the part of the theoretical model relating to organizational characteristics of a district court. The document analysis entailed the collation and examination of the seven district courts’ annual reports and documents from the national Council for the Judiciary (De Jong, 2004, p. 90).
6. Satisfaction of litigant parties with duration of the proceeding The interviews with litigant parties and the examination of matching case files present an impression of the plaintiff’s and defender’s level of satisfaction concerning the duration of administrative court proceedings. This topic will now be discussed separately for each category of litigant parties. 6.1. Satisfaction of plaintiffs The majority of plaintiffs (citizens, firms) have a clear opinion concerning their opinion of a reasonable duration for an appeal procedure. Approximately 85% of the plaintiffs have the preference for short court proceedings (less than six months). Three percent of plaintiffs would prefer the proceeding duration to be approximately one year, while approximately 12% would prefer a lengthy process (in excess of
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3 years). On average they are of the opinion that 5–6 months is a reasonable duration for a court to process a case. However, a number of the respondents stated that in their opinion the just duration of proceedings is determined by the complexity of the case and the urgency of the interests at hand (De Jong, 2004, pp. 131–132). The majority of plaintiffs do not anticipate the completion of the appeal case within 5 or 6 months. They assume that their appeal will have duration of an average of 9 months (De Jong, 2004, p. 132). However, the appeals procedures are not 5 or 6 months, and not even 9 months, the average duration of the appeal cases investigated was set at 415 days or in other words almost 14 months. The fact that an appeal case takes an average of 5 months longer than anticipated may be the reason why the plaintiffs are dissatisfied with the actual duration of the appeal case. Almost 70% of the plaintiffs are of the opinion that their proceedings took too long. Almost a quarter of the plaintiffs are of the opinion that the duration was exactly good. Only 5% of the plaintiffs were of the opinion that the duration was too short (De Jong, 2004, pp. 132–133) (Table 2). In accordance with the rational choice based part of our theoretical model it can be expected that the satisfaction of plaintiffs concerning the duration of proceedings will be influenced by their time preferences. This expectation is verified in practice. Table 3 shows that the majority of plaintiffs with a preference for a short proceeding are of the opinion that their procedure was too lengthy. On the other hand almost half of the plaintiffs with a preference for a delay are of the opinion that the Table 2 Satisfaction of plaintiffs with duration of the proceeding Satisfaction with duration of the proceeding
Number of plaintiffs
Too lengthy Good Too short Don’t know Total
70% 24% 5% 1% 100%
(64) (22) (5) (1) (92)
(N ¼ 93; Missing cases ¼ 1). (Source: De Jong, 2004, p. 133).
Table 3 Time preference of plaintiffs and their satisfaction with the duration of the proceeding Satisfaction with duration of the proceeding
Too short Satisfied Too lengthy Total
Time preference
Total
Fast
Neutral
Slow
0% 22% 78% 100% (77)
0% 33% 67% 100% (3)
46% 36% 18% 100% (11)
6% 24% 70% 100% (91)
(N ¼ 93; Missing cases ¼ 2; Spearman’s r ¼ 0:461; Po0:01). (Source: De Jong, 2004, p. 133).
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procedure was too short. This category of plaintiffs is also more satisfied with the duration of the proceeding than plaintiffs with a preference for shorter proceedings (De Jong, 2004, pp. 133–134). The satisfaction of a plaintiff with the duration of the proceeding is apparently not solely influenced by the plaintiff’s time preference. The duration of the proceeding is also an influential factor, which corresponds to our theoretical model. As previously stated, plaintiffs who prefer delay quite often experience the duration of the proceedings in a positive sense. Additional analysis of the research findings clearly illustrates the fact that even the plaintiffs who prefer delays are more frequently dissatisfied with the duration of their appeal procedure as the duration increases (De Jong, 2004, p. 134). 6.2. Satisfaction of defenders In an administrative appeal in first instance, the administrative authority always is the defending party. The administrative authority for building license-related cases is the municipal board (mayor and aldermen). This board is represented by a civil servant, referred to as the defender. Approximately 64% of defenders prefer short proceedings (less than 6 months), 27% is relatively neutral (within approximately 1 year) and 9% prefer lengthy proceedings (in excess of 3 years). According to the defenders, court proceedings should take in general only 6 months (De Jong, 2004, pp. 162, 214). How do the defenders assess the duration of the proceedings? The research data shows that 61% of the defenders were of the opinion that the proceedings were too lengthy, while 37% were satisfied with the duration of the proceedings. Only one of the interviewed civil servants was of the opinion that the lawsuits are processed too quickly (De Jong, 2004, pp. 161–162) (Table 4). Regardless of the defender’s time preference, the level of satisfaction decreases in accordance with the actual duration of the proceeding. The defender’s satisfaction about the duration of proceedings, contrary to the satisfaction of plaintiffs, is nor dependant on their time preferences. The level of satisfaction is solely related to the duration of the proceedings. This is only partially in keeping with our previously drawn up theoretical model (De Jong, 2004, pp. 162–163). Table 4 Satisfaction of defenders (civil servants) with duration of the proceeding Satisfaction of defenders with duration of the proceeding
Number of defenders
Too lengthy Good Too short Don’t know Total
61% 37% 1% 1% 100%
(N ¼ 93; Missing cases ¼ 2). (Source: De Jong, 2004, p. 162).
(55) (34) (1) (1) (91)
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7. Conduct of litigant parties Now the conduct of plaintiffs and defenders will be analyzed. This way it becomes clear to which extent and for which reasons litigant parties try to influence the duration of proceedings. 7.1. Conduct of plaintiffs There are two groups of building license plaintiffs in court proceedings: builders and neighbors. Builders commence court proceedings because they wish to build and therefore need a license or have already constructed a building without a license. Builders are citizens and firms who lodge appeals in relation to the rejection of building license applications by administrative authorities or in relation to the enforcement of sanctions by administrative bodies in cases where a building has been illegally constructed. The other type of plaintiff is the neighbor. Neighbors instigate legal action in order to prevent a builder with a license from building or to get an illegal building to be removed (De Jong, 2004, pp. 105–106). Builders and neighbors do not only differ in their goals; builders are optimistic, they think they will win the lawsuit. And when they do win, they expect that they will be able to build. Neighbors on the other hand are more pessimistic. They think they will lose the appeal. However, if they have a chance of winning the appeal, they anticipate that this will not prevent the construction of the building (De Jong, 2004, p. 110). The time preference of plaintiffs appears to be influenced by the legal status of the (potential) building.4 A preference for delay exists when the present legal status corresponds with the legal status the plaintiff wishes. In this situation, the plaintiff wants to keep his relatively favorable legal status. This happens for example when a builder owns an illegal building. When the lawsuit is about removal of his building, the legal insecurity that exists during the court proceeding protects the building against factual demolition. If he loses, judgment will bring legal security for the builder that is negatively valued by this party. The builder prefers legal insecurity above a negative outcome of the proceeding, so he can have the benefits of his building at least for a longer time. The research findings also show that plaintiffs who want to improve their legal status are the ones who prefer a short proceeding. A builder whose building license has been refused wants legal security as soon as possible. After judgment he has a good chance he can start constructing his building. The anticipated theoretical causal relationship between legal status and time preference is backed up by the data; however, this is not a perfect relationship. Many plaintiffs who should in fact prefer delays—in accordance with the foregoing reasoning—do in fact want short proceedings (De Jong, 2004, pp. 112–117). Although plaintiffs usually have a strong time preference they do not act accordingly. Generally they apply no strategy to influence the duration of the court 4
For clarification purposes, in the rational choice approach-based section of our theoretical model, the legal status of the (potential) building has been omitted in Section 4.
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proceeding. However, in some cases one or both of the two following legal acts are consciously made to influence the duration of the proceeding. The first action includes that a plaintiff requests a provisional remedy in order to speed up the ruling. This action has taken place in quite a number of cases. A provisional remedy can be realized by means of an expedited proceeding where the district court passes a provisional judgment in a very short time (on average within 45 days). In specific situations also an immediate ruling can be made during the expedited proceeding, which is occasionally referred to as a short circuit (De Jong, 2004, pp. 121–122). Another action includes that the plaintiff appeals to a higher court. In order to delay legal security, plaintiffs who lose their appeals in the first instance normally lodge an appeal with a more superior court. Although some behavior of this kind was found that intended to realize their time preferences, plaintiffs usually act so as to win the proceeding. The consequences of their actions on the duration of the proceeding are taken for granted (De Jong, 2004, pp. 128–129). 7.2. Conduct of defenders On the whole defenders, as is the case with plaintiffs, do not act according to their time preference. Not many actions are taken at all and if so, they are usually taken on the request of the district court. There is one thing all defenders have to do by virtue of the law; they must submit a written defense accompanied by the documents relating to the case. Belated submission of these documents is, as is apparent from the research findings, an influential factor for the duration of the proceedings. The actual delay in the total duration of the court proceeding will be discussed below (De Jong, 2004, pp. 152–153). Three factors concerning delays by administrative authorities in relation to the submission of defense papers were established. The submission is normally delayed when a third interested party (usually the licensee) is involved in the conflict. Then the administrative authority has to investigate the positions and interests of several parties at length. The submission of the written defense will also be delayed in disputes concerning both building licenses and also granting an exemption from a zoning plan. From a juridical and administrative point of view these types of disputes are of a more complex character. The third delaying factor is only applicable in appeals lodged by a neighbor. In such cases the submission of defense papers will be delayed if the defender ascertains overriding economic interests with respect to the intended construction of a new building (De Jong, 2004, pp. 153–158).
8. Influence of litigant conduct and court characteristics on duration of proceedings The theoretical model makes the assumption that the conduct of litigant parties at micro-level and a number of district court organizational characteristics at macrolevel influence the duration of court proceedings. A multi-level analysis of the
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Late lodging of defence (conduct of the defender) Submission of own expertise report (conductof theplaintiff)
Lengthy duration of proceedings
Significant court workload (characteristic of the court) Fig. 3. Duration of the proceeding influenced by the plaintiff, defender and court (Source: De Jong, 2004, p. 201).
research findings shows that three factors taken from the theoretical model have a statistically significant influence on the total duration of the court proceedings. The most important factor is at macro-level. Significant backlogs of unfinished cases at a district court will result in delays at this court. Backlogs of unfinished cases result in waiting lists and waiting lists result in an extension of the appeal procedure. Each case that has not been completed per employee at the end of the year will result in a delay of approximately 7 days. There are case processing time differences of 317 days between different courts for similar cases (De Jong, 2004, pp. 200, 207). The second factor is applicable at micro-level. Expertise reports presented by the plaintiff result in a delay of 274 days. In all probability the actual report is, however, not the cause of the delay. It is more feasible that this is attributable to the fact that reports of experts are only issued in complex cases. Therefore the complexity of the case may be the true reason for the delay (De Jong 2004, pp. 200, 207). The final factor also relates to the micro-level. Each day that the administrative authority deadline for submitting the written defense is exceeded, results in a delay of 1 or 2 days for the entire proceeding. An analysis of our cases results in a difference in duration of court proceedings of 102 days (De Jong, 2004, pp. 200, 207). A summary of the foregoing is presented in Fig. 3. The level of explained variation is particularly high at macro-level. This is much lower at micro-level. The system approach-based section of the theoretical model is therefore more in keeping with the empirical data than the rational choice-based section of the model. Nevertheless, significant influential factors were established at both macro- and micro-level that affect the duration of the proceedings.
9. Conclusions and recommendations Which conclusions can be drawn in relation to the previously stated research issues? With respect to the first research question (concerning the satisfaction of litigant parties with the duration of administrative court proceedings) it has been established that plaintiffs are of the opinion that 5–6 months is the maximum time
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limit for court proceedings. Plaintiffs who prefer delay are more satisfied with the duration of the proceedings than the plaintiffs with a preference for short proceedings. The level of plaintiff satisfaction decreases as the duration increases. This is also applicable to those with a preference for delays. The second research question (concerning factors that influence the rate of court proceedings) can be answered as follows. Both the conduct of litigant parties at micro-level and the characteristics of a district court at macro-level affect the duration of a court proceeding. Three factors arise from a multi-level analysis that have a statistically significant influence on the duration of the proceeding; namely the number of unfinished cases at the district court, the complexity of the case and the time of the defender’s defense submission. These three factors are responsible for delays of court proceedings. The influence of the three aforementioned factors can be used by the district courts in their efforts to shorten the duration of court proceedings. From this point of view, we will now formulate a number of recommendations which in turn answers the third research question. Our research shows that the relative extent of the backlog is the most important cause of delays in processing appeal cases. The caseload is apparently an important cause of the backlogs of unfinished cases (Bertrand and Wijngaard, 1989, pp. 62–63; Van der Aalst and Van Hee, 1997, p. 95). Therefore, there is a requirement to establish methods to reduce the caseload in order to eradicate the occurrence of backlogs of unfinished cases. This could be resolved through (temporary) employment of additional staff; however, this is an expensive solution (Bertrand and Wijngaard, 1989, pp. 62–63). Therefore, the possibility of ‘borrowing’ judicial staff from other sectors of the court with fewer problems should be investigated. This option seems particularly realistic as Dutch judges are trained to be versatile (Van der Doelen, 2000). Use could also be made of inter-district mutual assistance. Judges from other sectors and other district courts could provide their services in order to eradicate the worst backlogs in the field of administrative law (De Jong, 2004, pp. 201–202). The research also demonstrates that the provisional remedy proceeding provides civilians and firms with the opportunity to obtain a provisional ruling from the judge within an extremely short time period (approximately 45 days). In addition, the judge also has the authority to make a definitive ruling over the pending dispute (short circuit) during the provisional remedy proceeding. This allows parties to obtain a definitive judicial ruling about the dispute within a very short period. The judicial ruling is then effective within approximately 6 weeks, while the standard procedure can take almost a year. Judges make regular use of the possibility of issuing a definitive ruling about the pending dispute during a provisional remedy proceeding. Increased future use of this opportunity is recommended. This could be applied to lawsuits that do not require extensive research as they are non-complex and there are no important data missing (De Jong, 2004, p. 204). Another relevant point is that courts experience problems due to the limited enforceability of terms when these are violated by the defender (public authority). One of the few sanctioning possibilities is that the slow public authority is ordered to
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pay court costs (Ten Berge et al, 1996, pp. 316–317). This is a possibility that courts should make more intensive use of in the future. Although an order to pay costs issued to the slow public authority will only have effect in the subsequent proceedings, this will start in fact a learning process for the public authority. Further recommendations relate to legislation changes in order to provide judges with the possibility of imposing a penalty on the defending public authority for each additional day beyond the deadline (Ten Berge et al, 1996, p. 318). The financial stimulant argument proposed will entice public authorities to significantly increase the duration of court proceedings (De Jong, 2004, p. 204). Finally, district courts could also consider the option of ‘tightening up’ the deadlines they themselves set for the total duration of the procedure. A number of years ago the Dutch district courts actually set the deadline for processing lawsuits to within one year (Bureau PVRO, 2000, p. 3). We recommend that this term will be reduced to approximately 6 months. A term of 6 months would be in keeping with the wishes of the litigant parties. Both plaintiffs and defenders indicate that a duration of 6 months is within the boundaries of reason. A new deadline term should be chosen that is best suited to the wishes of the parties, but that can also be achieved by the courts (De Jong, 2004, p. 203). The recommendations in the foregoing are, to a significant extent, in line with those of Woolf (1996) in his famous report Access to Justice. One of the major problems of the civil justice system in England and Wales was considered to be that the system was too slow in bringing cases to a conclusion. Therefore, a structural changeover should take place to a more cost-effective allocation of manpower to different case categories and a case management system in which cases were no longer controlled by the litigant parties but by the court and its rules. The court should establish which procedure is suitable for each case. Many of the recommendations in Lord Woolf’s report are implemented in the Civil Justice Reforms that were introduced in England and Wales in 1999. The initial evaluations of these reforms display a moderately positive effect on the rate of court proceedings (Department for Constitutional Affairs, 2002). This could be seen as an argument for the implementation of our similar recommendations in administrative law proceedings.
References Bertrand, J.W.M., Wijngaard, J., 1989. Het organiseren van flexibiliteit, oftewel: wacht u voor wachten. In: Geraerds, W.M.J., Igel, M. (Eds.), Flexibiliteit en Logistiek. Samson/Nive, Alphen aan de Rijn. Bosker, O.J., 1997. Snelrecht, De generaal en speciaal preventieve effecten van sneller straffen. University of Groningen, Groningen. Bureau PVRO, 2000. Project Bestuursrechtelijke Procedure, Instroom, uitstroom en werkvoorraden bij de sectoren bestuursrecht, Een tussenrapportage. Bureau PVRO, The Hague. Commissie Leemhuis, 1998. Rechtspraak bij de tijd. Rapport Adviescommissie Toerusting en organisatie zittende magistratuur, The Hague. Commissie Van Kemenade, 1997. Bestuur in geding: Rapport van de werkgroep inzake terugdringing van de juridisering van het openbaar bestuur. Province Noord-Holland, Haarlem.
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Damen, L.J.A., 1999. Kan het niet een tikkeltje sneller, meester? In: Rutgers, G.R., Bro¨ring, H.E. (Eds.), Rechtspraak op tijd. Boom Juridische uitgevers, The Hague, pp. 87–99. De Jong, P.O., 2004. Beroep op tijd, Een onderzoek naar het tijdsbeslag van beroepsprocedures in eerste aanleg in het bestuursrecht. Ph.D. Thesis, University of Groningen. Boom Juridische uitgevers, The Hague. Department for Constitutional Affairs, 2002. Further findings, a continuing evaluation of the civil justice reforms, Department for Constitutional Affairs, London, [On-line]. Available at: http://www.dca.gov.uk/civil/reform/ffreform.htm. Dijkstra, G.S.A., 1999. Juridisering en de overbelasting van de rechterlijke macht. In: Trema; tijdschrift voor de rechterlijke macht, vol. 22(10a). pp. 4–8. Eshuis, R.J.J., 1998. Een kwestie van tijd, Onderzoek naar de doorlooptijden in handelszaken. Wetenschappelijk Onderzoek- en Documentatiecentrum, The Hague. Graat, P.A.M.J., 2001. Moderne kwaliteitsinstrumenten in het openbaar bestuur. In: Nederlands Tijdschrift voor Bestuursrecht, vol. 15(5). pp. 111–117. Knigge, G., 1998. Wat niet kan is nog nooit gebeurt. In: Rutgers, G.R., Bro¨ring, H.E. (Eds.), Rechtspraak op tijd. Boom Juridische uitgevers, The Hague, pp. 51–64. Koster, B., 1999. De rechtspraak kan sneller door procesgericht werken. In: Langbroek, P.M., Lahuis, K., Ten Berge, J.B.J.M. (Eds.), Kwaliteit van rechtspraak op de weegschaal. W.E.J. Tjeenk Willink, Zutphen, pp. 201–208. Langbroek, P.M., 1998. Rechtstaat, organisatie en rechterswerk. In: Langbroek, P.M., Lahuis, K., Ten Berge, J.B.J.M. (Eds.), Kwaliteit van rechtspraak op de weegschaal. W.E.J. Tjeenk Willink, Zutphen, pp. 70–71. Marseille, A.T., 2001. Geschilbeslechting door de bestuursrechter als object van beleid. In: Beleidswetenschap, vol. 15(5). Kluwer, Alphen aan den Rijn, pp. 423–443. Meinderts, R.B., Van Rest, P.H.S., 1998. Aanhouden en uitreiken: een versnelling in het strafproces. In: Rutgers, G.R., Bro¨ring, H.E. (Eds.), Rechtspraak op tijd. Boom Juridische uitgevers, The Hague, pp. 65–76. Neerhof, A.R., 1994. Het geschil voorbij: een studie naar de bruikbaarheid van bestuursrechtelijke jurisprudentie als kenbron van recht. Ph.D Thesis. University of Groningen, Kluwer, Deventer. Prakke, L., De Reede, J.L., Van Wissen, G.J.M., 2001. Handboek van het Nederlandse staatsrecht. W.E.J. Tjeenk Willink, Deventer. Prisma, 1996. De rechtbank: vijf maal doorgelicht. Prisma Organisatieontwikkeling RO, Amersfoort. Raad voor de Rechtspraak, 2003. Jaarcijfers 2002 sectoren bestuursrecht. Raad voor de Rechtspraak, The Hague. Slothouber, C., 1998. De organisatie-aspecten van de verhouding tussen rechters en ondersteuning, 1998. In: Kwaliteit van rechtspraak op de weegschaal. W.E.J. Tjeenk Willink, Zutphen, pp. 134–136. Ten Berge, J.B.J.M., 1998. Contouren van een kwaliteitsbeleid voor de rechtspraak. In: Langbroek, P.M., Lahuis, K., Ten Berge, J.B.J.M. (Eds.), Kwaliteit van rechtspraak op de weegschaal. W.E.J. Tjeenk Willink, Zutphen, pp. 21–40. Ten Berge, J.B.J.M., De Waard, B.W.N., Widdershoven, R.J.G.M., Bok, A.J., Voermans, W.J.M., Albers, P., Langbroek, P.M., Neerhof, A.R., 1996. Ervaringen met de Awb: het bestuursprocesrecht. W.E.J. Tjeenk Willink, Deventer. Tragter-Schubert, M., Vlug, L., 1999. Rechtspraak op tijd: een organisatiekundige benadering. In: Rutgers, G.R., Bro¨ring, H.E. (Eds.), Rechtspraak op tijd. Boom Juridische uitgevers, The Hague, pp. 119–128. Van der Aalst, W., Van Hee, K., 1997. Workflow management: modellen, methoden en systemen. Academic Service, Schoonhoven. Van der Doelen, F.C.J., 1999. Over de kwaliteit van rechtspreken, rechters en gerechten. In: Nederlands Juristenblad, vol. 74(28). pp. 1301–1307. Van der Doelen, F.C.J., 2000. Grenzen aan de generalistendoctrine. In: Barendrecht, J.M., Brenninkmeijer, A.F.M., Huls, N.J.H., Kleiboer, M.A. (Eds.), Rechtspleging, samenleving en bestuur: een gerichte onderzoeksagenda. Lemma, Utrecht, pp. 153–160.
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Van Ettekoven, B.J., 2001. Alternatieven van de bestuursrechter (observaties vanuit de eerste lijn). In: Van Ettekoven, B.J., Pach, M.A., Van der Vlies, I.C. (Eds.), Alternatieven voor de bestuursrechter. Boom Juridische uitgevers, The Hague, pp. 7–97. Witteveen, W.J., 2002. Modernisering van de rechterlijke macht: vijf risico’s. In: Nederlands Juristenblad, vol. 77(16). pp. 793–796. Woolf, L., 1996. Access to justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales. HMSO, London.
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International Journal of the Sociology of Law www.elsevier.com/locate/ijsl
The sooner the better management of time in district courts A.J.G.M. van Montfort, P.O. de Jong, M. Herweijer, A.T. Marseille Department of Public Administration and Organization Studies, Faculty of Social Sciences, Free University Amsterdam, De Boelelaan 1081, 1081 HV Amsterdam, The Netherlands
Abstract The quality of the administration of justice by courts is being discussed in many countries. The lengthy duration of court proceedings in particular is considered to be a problem in the Netherlands. This article presents the results of a large-scale research project into the opinions of litigant parties concerning the duration of administrative court proceedings in the Netherlands. Research was also carried out into the influence on the duration of court proceedings as a result of both the conduct of litigant parties and the characteristics of district courts. There are a number of factors, in particular the presence of significant backlogs of unfinished cases at the district court that have been proven to be responsible for delaying court proceedings. This provides a starting point for the formulation of several recommendations to speed up court proceedings. r 2005 Elsevier Ltd. All rights reserved.
1. Introduction In recent years, rising doubts have been voiced about the quality of the Dutch courts and their administration of justice (Neerhof, 1994; Prisma, 1996; Commissie Leemhuis, 1998; Damen, 1999; Van der Doelen, 1999; Tragter-Schubert and Vlug, Corresponding author: Tel.: +31 205986917; fax: +31 205986820
E-mail address: [email protected] (A.J.G.M. van Montfort). 0194-6595/$ - see front matter r 2005 Elsevier Ltd. All rights reserved. doi:10.1016/j.ijsl.2004.10.001
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1999). The lengthy duration of court proceedings was considered to be one of the most important problems. Numerous ideas have been formulated in recent times to reduce the duration of court proceedings. In 2002, the average time for processing an administrative court appeal was 359 days. There are variations in the court proceedings process between the 19 district courts in the Netherlands. The quickest processing time was two and a half times quicker than the slowest processing time (Raad voor de Rechtspraak, 2003). Significant differences were also established in cases processed by one single district court (Marseille, 2001, pp. 434–436). Until now, very little empirical research has been carried out into factors that contribute to the duration of court proceedings. However, insight into the causes of the duration is required in order to draw up a policy for the reduction of the duration of court proceedings. The fact that there are differences in duration of court proceedings between district courts as well as within district courts suggests that causes can be found both at the district court organization level and at individual court proceedings level. Therefore, a study into both the characteristics of district courts and the conduct of litigant parties (plaintiffs and defenders) was carried out for our research project. Furthermore, there is no information available pertaining to the opinion of litigant parties concerning the duration of their court proceedings; is this duration in their view problematic or not? Dutch legal literature states the general need for quick and efficient court proceedings as an important premise. However, very little empirical research into the wishes of litigant parties concerning this matter has been carried out (Witteveen, 2002). Therefore, the satisfaction of litigant parties relating to the duration of their court proceedings has also been taken into account in this research project. The subsequent research issues were derived from the foregoing: How do litigant parties evaluate the duration of administrative court proceedings in the first instance? What is the relationship between the duration of court proceedings on the one hand and the conduct of litigant parties and the characteristics of district courts on the other hand? What can be done to decrease the duration of court proceedings? The term ‘duration’ of court proceedings refers to the period between the submission of an appeal by a plaintiff and a verdict pronouncement by the court. In other words, the entire proceeding is taken into account. The questions in the foregoing will be answered based on a large-scale research project carried out between 1999 and 2004.1 The research focused on administrative appeals pertaining to building licenses and also the enforcement of license stipulations. These appeals are heard by district courts. Only appeals in the first 1
The project consisted of a doctoral research that was executed by the second author of this paper and supervised by the other authors. The doctoral thesis was recently published (De Jong, 2004).
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instance were taken into consideration. Therefore no superior court appeals were included in this research. To begin with, general information relating to the organization of the Dutch judiciary system will be presented (Section 2), followed by statistical data originating from the national Council for the Judiciary.2 This data will be used to illustrate the lengthy court proceedings, in particular administrative court proceedings (Section 3). Subsequently, the most important elements of the theoretical model that was used and tested in our empirical research will be presented (Section 4). In relation to this, an outline of the data collection methods will be given (Section 5). The following section of the paper will be dedicated to an analysis of the opinions and conduct of litigant parties. There are two categories of litigant parties, namely, plaintiffs (citizen and companies) and defenders (local authorities). The initial focus will be on the satisfaction of both categories of litigant parties relating to the duration of administrative court proceedings (Section 6), followed by an analysis of the conduct of plaintiffs and the conduct of defenders (Section 7). The foregoing is the basis for establishing the influence of litigant party conduct on the duration of administrative court proceedings. The influence of certain characteristics of the district courts on the duration of court proceedings will also be taken into consideration when assessing the influence of the conduct of the litigant parties. This allows the value of the theoretical model to be established (Section 8). This article will be brought to a close with our conclusions pertaining to the aforementioned research questions. A number of these conclusions contain recommendations for decreasing the duration of court proceedings. There are sufficient opportunities available for use by district court managers in order to increase the rate of proceedings (Section 9).
2. Organization of the Dutch judiciary In addition to the legislator and the government, the judiciary is one of the three powers (forces) in our legal state. It is important that the judiciary is independent and unbiased in order to protect citizens (Prakke et al., 2001, pp. 535–538). The judiciary operates within courts of law. There are various courts of law in the Netherlands, for example the district courts, the courts of appeal and the Supreme Court. The need for independent administration of justice has consequences for the organization of the courts. The independence is not solely limited to the courts, but in fact extended to the professional independence of the judge in the capacity of government official (Langbroek, 1998). The district courts constitute an important part of the Dutch judiciary. Among other things, the district courts hear appeals pertaining to building licenses or the enforcement of license stipulations. There are 19 district courts in the Netherlands, distributed across various regional areas. 2 The Council for the Judiciary (Raad voor de Rechtspraak) acts as a link between the Minister of Justice and nearly every Dutch court. This national organization is charged with promoting good quality execution of judiciary duties by the courts.
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Within the court system judges are responsible for making rulings in conflicts that are brought before them. All district courts have a sector structure. Each sector deals with appeals from a specific branch of law, including administrative law, civil law and criminal law. There is also always a sector for ‘minor cases’. There is an administrative law sector in all district courts. The primary function of the administrative law sector is making rulings for appeals submitted against public authority decisions. Two types of support are provided for the judges in relation to the execution of this primary function, this support is incorporated in the sector. The administrative support, also referred to as court registry or administration, carries out tasks such as processing correspondence and collating case files (Slothouber, 1998). Although this relates to administrative actions, a limited level of legal knowledge is required in order to carry out this task properly. In addition to this there are a number of employees, for example, clerks and staff lawyers, who support the judge in the decision-making processes concerning the appeals. This group is known as the judicial support. This often relates to lawyers who take over a significant part of the preparation work from the judges (Prisma, 1996). In this way judicial supporters—under the responsibility of the judge—execute a significant part of the groundwork of the decision-making processes.
3. The problem of slow administration of justice In the Netherlands, the long duration of court cases is considered to be a bottleneck in the operation of administrative law (Commissie Leemhuis, 1998, p. 4). However, the following comments must be made in relation to this. Parties only experience a lengthy waiting time for a ruling in specific sub-areas. The problem of slow administrative law occurs in almost all fields of administrative law and a number of civil law fields. This is shown in Table 1. A recent investigation was carried out into the long duration of proceedings that was ascertained within the civil law system (Eshuis, 1998). The duration of proceedings in the criminal law system is short in comparison to administrative law and civil law; however, this is still thought to be a problematic issue. Rapid punishment would be beneficial to the credibility and the reprisals (Knigge, 1998, pp. 53–57). This gave rise to various tit for tat experiments, for example, the Arrest and Issue project (Meinderts and Van Rest, 1998).3 There seems to be less clarity with respect to the problems relating to the long duration of court proceedings in administrative law in relation to the other law sectors. With an average processing time in 2001 of approximately 1 year, the administrative law courts are faced with a problem that must be investigated. This is the reason why this research focuses on administrative law. 3
However a number of investigators are of the opinion that the predicted positive impact of a rapid ruling on the specific and general prevention is non-perceivable (Bosker, 1997).
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Table 1 Duration of proceedings in the first instance (2001) expressed in number of calendar days Court
Type of case
Duration 2001
District court, Civil sector
Commercial matters with defense Commercial matters without defense Rulings in reaction to petitions Bankruptcy Divorce cases Rulings in reaction to petitions concerning juvenile matters Other family matters (e.g. adoption) Summary proceedings
323 41 45 — 104 35 148 49
District court, Administration sector
Administration matters Temporary arrangements (provisional relief) Alien affairs matters
373 45 —
District court, Criminal law sector
Criminal law cases (processed by several judges) Elaboration of sentences for the benefit of superior court proceedings (processed by several judges) Police court matters, incl. economic offences (processed by one judge) Commercial matters with defense
124 114a
District court, Sector for ‘minor Cases’
Court of justice
Commercial matters without defense Family law matters Summary proceedings Criminal law matters (violations) Tax matters
71a 66a 13 27 30 43 527
— Missing data. (Source: Raad voor de Rechtspraak, 2003). a This is the average processing time for matters that were processed up to August 2001.
4. Theoretical model Two various theoretical approaches were used in this research: the rational choice approach (or rational choice theory) and the system approach. For each approach a number of factors were highlighted that according to the theory may be influential to the duration of a proceeding and the satisfaction of litigant parties with this duration. 4.1. Rational choice approach: opinions and conduct of litigant parties The rational choice approach was used first. One of the basic premises is that the difference in duration of procedures within courts is caused by differences in conduct of litigant parties (Ten Berge et al., 1996, pp. 292–294). The premise is made that all litigant parties are rational actors. Some parties may prefer a ruling in an early stage of the proceedings while others prefer a delay. This is known as the time preference.
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There are two reasons why a party wishes to commence a court proceeding. It may be in her interest to win the case, however, she may also have a special interest in delaying or speeding up the governmental decision-making process (Commissie Van Kemenade, 1997, p. 42). A party may be motivated by either of these two preferences (Dijkstra, 1999). The intention of certain conduct of a litigant party may be to increase their chance of a successful proceeding, other conduct, however, is used to achieve a postponement or acceleration of the proceeding (Ten Berge et al., 1996, p. 294). Litigant parties are expected to adopt the most suitable conduct in relation to both their time preference and their chance of winning the lawsuit. This conduct may have an impact on the duration of the court proceedings, regardless of the underlying reason; wining the appeal or delaying the proceeding. In relation to the level of satisfaction concerning the duration of the proceeding, it is plausible that litigant parties will be satisfied with a duration that corresponds with their time preferences. The application of the rational choice approach ultimately resulted in a number of elaborate theoretic insights. These insights form the first part of our theoretical model (De Jong, 2004, pp. 49–67). In this paper, use is made of a somewhat simplified version of the first part of the theoretical model. The simplified version is shown in Fig. 1. 4.2. System approach: characteristics of a district court The second theoretical approach can be denoted as the system approach. This approach can be used to predict delay caused by management characteristics of the district court (Koster, 1999; Tragter-Schubert and Vlug, 1999; Van der Doelen, 1999; Ten Berge, 1998, Graat, 2001; Van Ettekoven, 2001). Use was made of the ‘workflow management’ theory to identify factors (Van der Aalst and Van Hee, 1997). The basic assumption made in this approach was that the duration of a court proceeding is determined by the time judges and administrative workers actually devote to working on the file (work) and the time taken until the commencement of the next phase in the operation (wait). The time factor for waiting is dominant in many organizations and it is expected that this is also applicable to district courts (Koster, 1999, Tragter–Schubert and Vlug, 1999). Waiting times in court proceedings may be due to a significant stock of old cases related to the number of judges and other staff members (Ten Berge et al., 1996, p. 291; Commissie Leemhuis, 1998, pp. 19–21; Van Ettekoven, 2001, p. 28). The application of the system approach also resulted in a number of elaborate theoretical insights, which makes up the second part of our theoretical model (De Jong, 2004, pp. 69–80). A somewhat simplified version of the second part of the model is given in Fig. 2. The research findings presented further on in this article show that the causal relationships presumed in the theoretical model are realistic to a significant extent. The aspects relating to the opinions and conduct of litigant parties and organizational characteristics of district courts that are included in our theoretical
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Estimated chance of winning the lawsuit
Time preference
Conduct in order to achieve time preference
Conduct in order to win the lawsuit
Duration of proceedings
Satisfaction with duration of proceedings Fig. 1. Duration of proceedings (and satisfaction of litigant parties about this duration) influenced by the conduct of parties (Source: De Jong, 2004, p. 50).
Stock of old cases in relation to the number of judges and other staff
Work
Wait
Duration of proceeding Fig. 2. Duration of proceedings influenced by organizational characteristics of the district court (Source: De Jong, 2004, p. 73).
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model appear to have a true influence on the duration of court proceedings and the satisfaction of litigant parties about this duration.
5. Data collection Data was collected from seven of the 19 district courts. The seven district courts vary with regard to both the size and location of the court. Data was collected from these seven district courts relating to opinions and conduct of litigant parties and also data pertaining to the organizational characteristics of the district court. Regarding the part of our theoretical model that relates to the opinions and conduct of litigant parties, both the plaintiff and the defender were interviewed in 93 cases (lawsuits). These interviews were held between the hearing and the verdict pronouncement in order to avoid biases relating to the outcome of the lawsuit. Following the ruling, case files were examined in order to collect more specific information. The data collected from the interviews and the files were jointly analyzed (De Jong, 2004, pp. 81–92). All of the defenders approached for this research were willing to co-operate. The willingness of the plaintiffs on the other hand was lower; replies were only received from one-third of the approached plaintiffs. Because of this, corporate bodies, plaintiffs with professional legal aid and plaintiffs who had constructed without a permit were underrepresented in the sample survey. Therefore, the results of this study solely apply to district court proceedings with natural persons and small corporate bodies (De Jong, 2004, pp. 89, 92–96). An additional document analysis was carried out pertaining to the part of the theoretical model relating to organizational characteristics of a district court. The document analysis entailed the collation and examination of the seven district courts’ annual reports and documents from the national Council for the Judiciary (De Jong, 2004, p. 90).
6. Satisfaction of litigant parties with duration of the proceeding The interviews with litigant parties and the examination of matching case files present an impression of the plaintiff’s and defender’s level of satisfaction concerning the duration of administrative court proceedings. This topic will now be discussed separately for each category of litigant parties. 6.1. Satisfaction of plaintiffs The majority of plaintiffs (citizens, firms) have a clear opinion concerning their opinion of a reasonable duration for an appeal procedure. Approximately 85% of the plaintiffs have the preference for short court proceedings (less than six months). Three percent of plaintiffs would prefer the proceeding duration to be approximately one year, while approximately 12% would prefer a lengthy process (in excess of
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3 years). On average they are of the opinion that 5–6 months is a reasonable duration for a court to process a case. However, a number of the respondents stated that in their opinion the just duration of proceedings is determined by the complexity of the case and the urgency of the interests at hand (De Jong, 2004, pp. 131–132). The majority of plaintiffs do not anticipate the completion of the appeal case within 5 or 6 months. They assume that their appeal will have duration of an average of 9 months (De Jong, 2004, p. 132). However, the appeals procedures are not 5 or 6 months, and not even 9 months, the average duration of the appeal cases investigated was set at 415 days or in other words almost 14 months. The fact that an appeal case takes an average of 5 months longer than anticipated may be the reason why the plaintiffs are dissatisfied with the actual duration of the appeal case. Almost 70% of the plaintiffs are of the opinion that their proceedings took too long. Almost a quarter of the plaintiffs are of the opinion that the duration was exactly good. Only 5% of the plaintiffs were of the opinion that the duration was too short (De Jong, 2004, pp. 132–133) (Table 2). In accordance with the rational choice based part of our theoretical model it can be expected that the satisfaction of plaintiffs concerning the duration of proceedings will be influenced by their time preferences. This expectation is verified in practice. Table 3 shows that the majority of plaintiffs with a preference for a short proceeding are of the opinion that their procedure was too lengthy. On the other hand almost half of the plaintiffs with a preference for a delay are of the opinion that the Table 2 Satisfaction of plaintiffs with duration of the proceeding Satisfaction with duration of the proceeding
Number of plaintiffs
Too lengthy Good Too short Don’t know Total
70% 24% 5% 1% 100%
(64) (22) (5) (1) (92)
(N ¼ 93; Missing cases ¼ 1). (Source: De Jong, 2004, p. 133).
Table 3 Time preference of plaintiffs and their satisfaction with the duration of the proceeding Satisfaction with duration of the proceeding
Too short Satisfied Too lengthy Total
Time preference
Total
Fast
Neutral
Slow
0% 22% 78% 100% (77)
0% 33% 67% 100% (3)
46% 36% 18% 100% (11)
6% 24% 70% 100% (91)
(N ¼ 93; Missing cases ¼ 2; Spearman’s r ¼ 0:461; Po0:01). (Source: De Jong, 2004, p. 133).
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procedure was too short. This category of plaintiffs is also more satisfied with the duration of the proceeding than plaintiffs with a preference for shorter proceedings (De Jong, 2004, pp. 133–134). The satisfaction of a plaintiff with the duration of the proceeding is apparently not solely influenced by the plaintiff’s time preference. The duration of the proceeding is also an influential factor, which corresponds to our theoretical model. As previously stated, plaintiffs who prefer delay quite often experience the duration of the proceedings in a positive sense. Additional analysis of the research findings clearly illustrates the fact that even the plaintiffs who prefer delays are more frequently dissatisfied with the duration of their appeal procedure as the duration increases (De Jong, 2004, p. 134). 6.2. Satisfaction of defenders In an administrative appeal in first instance, the administrative authority always is the defending party. The administrative authority for building license-related cases is the municipal board (mayor and aldermen). This board is represented by a civil servant, referred to as the defender. Approximately 64% of defenders prefer short proceedings (less than 6 months), 27% is relatively neutral (within approximately 1 year) and 9% prefer lengthy proceedings (in excess of 3 years). According to the defenders, court proceedings should take in general only 6 months (De Jong, 2004, pp. 162, 214). How do the defenders assess the duration of the proceedings? The research data shows that 61% of the defenders were of the opinion that the proceedings were too lengthy, while 37% were satisfied with the duration of the proceedings. Only one of the interviewed civil servants was of the opinion that the lawsuits are processed too quickly (De Jong, 2004, pp. 161–162) (Table 4). Regardless of the defender’s time preference, the level of satisfaction decreases in accordance with the actual duration of the proceeding. The defender’s satisfaction about the duration of proceedings, contrary to the satisfaction of plaintiffs, is nor dependant on their time preferences. The level of satisfaction is solely related to the duration of the proceedings. This is only partially in keeping with our previously drawn up theoretical model (De Jong, 2004, pp. 162–163). Table 4 Satisfaction of defenders (civil servants) with duration of the proceeding Satisfaction of defenders with duration of the proceeding
Number of defenders
Too lengthy Good Too short Don’t know Total
61% 37% 1% 1% 100%
(N ¼ 93; Missing cases ¼ 2). (Source: De Jong, 2004, p. 162).
(55) (34) (1) (1) (91)
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7. Conduct of litigant parties Now the conduct of plaintiffs and defenders will be analyzed. This way it becomes clear to which extent and for which reasons litigant parties try to influence the duration of proceedings. 7.1. Conduct of plaintiffs There are two groups of building license plaintiffs in court proceedings: builders and neighbors. Builders commence court proceedings because they wish to build and therefore need a license or have already constructed a building without a license. Builders are citizens and firms who lodge appeals in relation to the rejection of building license applications by administrative authorities or in relation to the enforcement of sanctions by administrative bodies in cases where a building has been illegally constructed. The other type of plaintiff is the neighbor. Neighbors instigate legal action in order to prevent a builder with a license from building or to get an illegal building to be removed (De Jong, 2004, pp. 105–106). Builders and neighbors do not only differ in their goals; builders are optimistic, they think they will win the lawsuit. And when they do win, they expect that they will be able to build. Neighbors on the other hand are more pessimistic. They think they will lose the appeal. However, if they have a chance of winning the appeal, they anticipate that this will not prevent the construction of the building (De Jong, 2004, p. 110). The time preference of plaintiffs appears to be influenced by the legal status of the (potential) building.4 A preference for delay exists when the present legal status corresponds with the legal status the plaintiff wishes. In this situation, the plaintiff wants to keep his relatively favorable legal status. This happens for example when a builder owns an illegal building. When the lawsuit is about removal of his building, the legal insecurity that exists during the court proceeding protects the building against factual demolition. If he loses, judgment will bring legal security for the builder that is negatively valued by this party. The builder prefers legal insecurity above a negative outcome of the proceeding, so he can have the benefits of his building at least for a longer time. The research findings also show that plaintiffs who want to improve their legal status are the ones who prefer a short proceeding. A builder whose building license has been refused wants legal security as soon as possible. After judgment he has a good chance he can start constructing his building. The anticipated theoretical causal relationship between legal status and time preference is backed up by the data; however, this is not a perfect relationship. Many plaintiffs who should in fact prefer delays—in accordance with the foregoing reasoning—do in fact want short proceedings (De Jong, 2004, pp. 112–117). Although plaintiffs usually have a strong time preference they do not act accordingly. Generally they apply no strategy to influence the duration of the court 4
For clarification purposes, in the rational choice approach-based section of our theoretical model, the legal status of the (potential) building has been omitted in Section 4.
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proceeding. However, in some cases one or both of the two following legal acts are consciously made to influence the duration of the proceeding. The first action includes that a plaintiff requests a provisional remedy in order to speed up the ruling. This action has taken place in quite a number of cases. A provisional remedy can be realized by means of an expedited proceeding where the district court passes a provisional judgment in a very short time (on average within 45 days). In specific situations also an immediate ruling can be made during the expedited proceeding, which is occasionally referred to as a short circuit (De Jong, 2004, pp. 121–122). Another action includes that the plaintiff appeals to a higher court. In order to delay legal security, plaintiffs who lose their appeals in the first instance normally lodge an appeal with a more superior court. Although some behavior of this kind was found that intended to realize their time preferences, plaintiffs usually act so as to win the proceeding. The consequences of their actions on the duration of the proceeding are taken for granted (De Jong, 2004, pp. 128–129). 7.2. Conduct of defenders On the whole defenders, as is the case with plaintiffs, do not act according to their time preference. Not many actions are taken at all and if so, they are usually taken on the request of the district court. There is one thing all defenders have to do by virtue of the law; they must submit a written defense accompanied by the documents relating to the case. Belated submission of these documents is, as is apparent from the research findings, an influential factor for the duration of the proceedings. The actual delay in the total duration of the court proceeding will be discussed below (De Jong, 2004, pp. 152–153). Three factors concerning delays by administrative authorities in relation to the submission of defense papers were established. The submission is normally delayed when a third interested party (usually the licensee) is involved in the conflict. Then the administrative authority has to investigate the positions and interests of several parties at length. The submission of the written defense will also be delayed in disputes concerning both building licenses and also granting an exemption from a zoning plan. From a juridical and administrative point of view these types of disputes are of a more complex character. The third delaying factor is only applicable in appeals lodged by a neighbor. In such cases the submission of defense papers will be delayed if the defender ascertains overriding economic interests with respect to the intended construction of a new building (De Jong, 2004, pp. 153–158).
8. Influence of litigant conduct and court characteristics on duration of proceedings The theoretical model makes the assumption that the conduct of litigant parties at micro-level and a number of district court organizational characteristics at macrolevel influence the duration of court proceedings. A multi-level analysis of the
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Late lodging of defence (conduct of the defender) Submission of own expertise report (conductof theplaintiff)
Lengthy duration of proceedings
Significant court workload (characteristic of the court) Fig. 3. Duration of the proceeding influenced by the plaintiff, defender and court (Source: De Jong, 2004, p. 201).
research findings shows that three factors taken from the theoretical model have a statistically significant influence on the total duration of the court proceedings. The most important factor is at macro-level. Significant backlogs of unfinished cases at a district court will result in delays at this court. Backlogs of unfinished cases result in waiting lists and waiting lists result in an extension of the appeal procedure. Each case that has not been completed per employee at the end of the year will result in a delay of approximately 7 days. There are case processing time differences of 317 days between different courts for similar cases (De Jong, 2004, pp. 200, 207). The second factor is applicable at micro-level. Expertise reports presented by the plaintiff result in a delay of 274 days. In all probability the actual report is, however, not the cause of the delay. It is more feasible that this is attributable to the fact that reports of experts are only issued in complex cases. Therefore the complexity of the case may be the true reason for the delay (De Jong 2004, pp. 200, 207). The final factor also relates to the micro-level. Each day that the administrative authority deadline for submitting the written defense is exceeded, results in a delay of 1 or 2 days for the entire proceeding. An analysis of our cases results in a difference in duration of court proceedings of 102 days (De Jong, 2004, pp. 200, 207). A summary of the foregoing is presented in Fig. 3. The level of explained variation is particularly high at macro-level. This is much lower at micro-level. The system approach-based section of the theoretical model is therefore more in keeping with the empirical data than the rational choice-based section of the model. Nevertheless, significant influential factors were established at both macro- and micro-level that affect the duration of the proceedings.
9. Conclusions and recommendations Which conclusions can be drawn in relation to the previously stated research issues? With respect to the first research question (concerning the satisfaction of litigant parties with the duration of administrative court proceedings) it has been established that plaintiffs are of the opinion that 5–6 months is the maximum time
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limit for court proceedings. Plaintiffs who prefer delay are more satisfied with the duration of the proceedings than the plaintiffs with a preference for short proceedings. The level of plaintiff satisfaction decreases as the duration increases. This is also applicable to those with a preference for delays. The second research question (concerning factors that influence the rate of court proceedings) can be answered as follows. Both the conduct of litigant parties at micro-level and the characteristics of a district court at macro-level affect the duration of a court proceeding. Three factors arise from a multi-level analysis that have a statistically significant influence on the duration of the proceeding; namely the number of unfinished cases at the district court, the complexity of the case and the time of the defender’s defense submission. These three factors are responsible for delays of court proceedings. The influence of the three aforementioned factors can be used by the district courts in their efforts to shorten the duration of court proceedings. From this point of view, we will now formulate a number of recommendations which in turn answers the third research question. Our research shows that the relative extent of the backlog is the most important cause of delays in processing appeal cases. The caseload is apparently an important cause of the backlogs of unfinished cases (Bertrand and Wijngaard, 1989, pp. 62–63; Van der Aalst and Van Hee, 1997, p. 95). Therefore, there is a requirement to establish methods to reduce the caseload in order to eradicate the occurrence of backlogs of unfinished cases. This could be resolved through (temporary) employment of additional staff; however, this is an expensive solution (Bertrand and Wijngaard, 1989, pp. 62–63). Therefore, the possibility of ‘borrowing’ judicial staff from other sectors of the court with fewer problems should be investigated. This option seems particularly realistic as Dutch judges are trained to be versatile (Van der Doelen, 2000). Use could also be made of inter-district mutual assistance. Judges from other sectors and other district courts could provide their services in order to eradicate the worst backlogs in the field of administrative law (De Jong, 2004, pp. 201–202). The research also demonstrates that the provisional remedy proceeding provides civilians and firms with the opportunity to obtain a provisional ruling from the judge within an extremely short time period (approximately 45 days). In addition, the judge also has the authority to make a definitive ruling over the pending dispute (short circuit) during the provisional remedy proceeding. This allows parties to obtain a definitive judicial ruling about the dispute within a very short period. The judicial ruling is then effective within approximately 6 weeks, while the standard procedure can take almost a year. Judges make regular use of the possibility of issuing a definitive ruling about the pending dispute during a provisional remedy proceeding. Increased future use of this opportunity is recommended. This could be applied to lawsuits that do not require extensive research as they are non-complex and there are no important data missing (De Jong, 2004, p. 204). Another relevant point is that courts experience problems due to the limited enforceability of terms when these are violated by the defender (public authority). One of the few sanctioning possibilities is that the slow public authority is ordered to
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pay court costs (Ten Berge et al, 1996, pp. 316–317). This is a possibility that courts should make more intensive use of in the future. Although an order to pay costs issued to the slow public authority will only have effect in the subsequent proceedings, this will start in fact a learning process for the public authority. Further recommendations relate to legislation changes in order to provide judges with the possibility of imposing a penalty on the defending public authority for each additional day beyond the deadline (Ten Berge et al, 1996, p. 318). The financial stimulant argument proposed will entice public authorities to significantly increase the duration of court proceedings (De Jong, 2004, p. 204). Finally, district courts could also consider the option of ‘tightening up’ the deadlines they themselves set for the total duration of the procedure. A number of years ago the Dutch district courts actually set the deadline for processing lawsuits to within one year (Bureau PVRO, 2000, p. 3). We recommend that this term will be reduced to approximately 6 months. A term of 6 months would be in keeping with the wishes of the litigant parties. Both plaintiffs and defenders indicate that a duration of 6 months is within the boundaries of reason. A new deadline term should be chosen that is best suited to the wishes of the parties, but that can also be achieved by the courts (De Jong, 2004, p. 203). The recommendations in the foregoing are, to a significant extent, in line with those of Woolf (1996) in his famous report Access to Justice. One of the major problems of the civil justice system in England and Wales was considered to be that the system was too slow in bringing cases to a conclusion. Therefore, a structural changeover should take place to a more cost-effective allocation of manpower to different case categories and a case management system in which cases were no longer controlled by the litigant parties but by the court and its rules. The court should establish which procedure is suitable for each case. Many of the recommendations in Lord Woolf’s report are implemented in the Civil Justice Reforms that were introduced in England and Wales in 1999. The initial evaluations of these reforms display a moderately positive effect on the rate of court proceedings (Department for Constitutional Affairs, 2002). This could be seen as an argument for the implementation of our similar recommendations in administrative law proceedings.
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