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Are Litigants, Trials and Precedents Vanishing After All?
Modern Law Review  (IF1.779),  Pub Date : 2021-10-03, DOI: 10.1111/1468-2230.12685
Linda Mulcahy, Wendy Teeder

In recent years scholars have become increasingly concerned with the ‘vanishing trial’, and its impact on common law civil justice systems that rely 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. Against this backdrop the article goes on to discuss the production of precedent and, drawing on an analysis of seventy years of government data on civil litigation cases, contests the assumption that vanishing trials lead to a decline in precedent. 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.