Biography

Andrew is an Associate Professor in Civil Procedure at the Law Faculty and a Fellow in Law at Mansfield College. He is currently General Editor of Civil Justice Quarterly and the academic member of the Civil Justice Council. The CJC is an advisory public body which was established under the Civil Procedure Act 1997 with responsibility for overseeing and co-ordinating the modernisation of the civil justice system. 

Andrew completed a BA/LLB (hons) at the University of Melbourne in 2001 and the BCL in 2005. He completed a Dphil at Oxford on legal professional privilege in 2011. He has been a visiting scholar with NYU's Hauser Global Law School Program and is a Senior Teaching Fellow at Melbourne Law School, where he regularly teaches on the Melbourne Law Masters.

Since 2011 Andrew has acted as special counsel for the Australian Government in the defence of is tobacco plain packaging laws from constitutional and intentional legal challenges, including Philip Morris' Investor State Arbitration claim and disputes bought by Dominican Republic and others before the World Trade Organisation. Andrew is also an observer of the WHO-Framework Convention on Tobacco Control's expert group on Article 19 'Liability.' He has helped the World Health Organisation develop an online toolkit to assist Parties reform their civil justice systems as a means of implementing Article 19.

Andrew is a part time practising barrister at the Victorian Bar, and previously worked as a lawyer at the Australian law firm Slater & Gordon. His main area of practice is mass tort litigation and has worked on aslyum seeker, asbestos, thalidomide and tobacco cases. He has advised the Australian Competition and Consumer Commission on whether the use of light and mild descriptors for cigarettes constituted misleading advertising, assisted the US Department of Justice on its RICO claim against the US tobacco industry, US v Philip Morris et al and received awards for his work exposing British American Tobacco’s “document retention policies” in McCabe v British American Tobacco including from a coalition of public health NGOs.

Andrew’s main research interests are civil procedure, causation and tort. He is currently the law faculty's Access & Outreach Co-ordinator.

 

Publications

Featured publications

  • A Higgins, 'Legal Professional Privilege' in A Zuckerman (ed), Zuckerman on Australian Civil Procedure (Lexis 2018)
  • A Higgins, J Walker, D Rowe and C Crifo, 'A Higgins, J Walker, D Rowe and C Crifo, ‘Thoughtful practitioners and an engaged legal community: the impact of the teaching of procedure on the legal profession and on civil justice reform’ (2013) Osgoode Hall Law Journal 155 - 198. ' (2013) 51 Osgoode Hall Law Journal 155

Chapter (8)

A Higgins, 'Keep Calm and Keep Litigating' in A Higgins (ed), The Civil Procedure Rules at 20 (Oxford University Press 2020) (forthcoming)
This paper presents a broad overview of some of the key challenges facing the civil justice system, touching on a number of themes addressed at the 20th anniversary conference in June 2019 of the CPR coming into force. The paper considers the case for redefining the legal definition of proportionality exclusively by reference to the private value of claim, and the public interest in the determination of the issues raised by the claim. To achieve this goal, it considers whether it is time to split the dual functions of the civil justice system – rule clarification on the one hand, and dispute resolution on the other hand. The paper also considers whether there is a deeper cultural resistance to making the civil justice system more accessible which is based on a belief that litigation is inherently divisive and socially undesirable. The paper rejects these concerns on the grounds it artificially separates the litigation process from the underlying dispute that gives rise to it. The paper concludes by presenting some empirical data on civil claims rates in England and other major legal jurisdictions, and English media coverage of litigation. The data suggests that litigation rates in England are actually higher than some comparable countries, and while there is some media pre-occupation with the risk of England developing a “compensation culture”, there is regrettably far less coverage of the key UK Supreme Court decisions that establish the legal principles that govern people’s everyday interaction. As a consequence, there is a risk that the public may develop a skewed picture of what the law provides.
Id: 11656
A Higgins, Inbar Levy and Thibaut Lienart, 'The Bright but Modest Potential of Algorithms in the Courtroom' in Andrew Higgins and Rabeea Assy (eds), Principles, Procedure and Justice: Essays in Honour of Adrian Zuckerman (Oxford University Press 2020)
This chapter investigates the potential of algorithms and machine learning (ML) to improve decision-making. It considers the best roles for algorithms while maintaining important elements of human judgment. There are essential human skills in judging, but algorithms could help systematize the judicial function and thus reduce the risk of human error, inconsistency, and individual bias. Algorithmic decision-making and ML could in principle mitigate these problems since algorithms are more consistent and rely on and can synthesize more data than a human. Yet, recent proposals to use algorithms in the civil justice system are still underdeveloped and face scepticism. This chapter evaluates the risks and benefits of using algorithms in adjudication by pointing out specific elements of legal skill and expertise and identifying tasks better suited for an algorithm. While there are significant reliability and fairness limitations in using AI to make legal decisions, it is important to recognize that many of these weaknesses already exist to varying degrees in human judicial decision-making.
ISBN: 9780198850410
Id: 12155
A Higgins, 'Joinder and Collective Redress ' in A Zuckerman (ed), Zuckerman on Australian Civil Procedure (Lexis 2018)
ISBN: 9780409342147
Id: 10356
A Higgins, 'Legal Professional Privilege' in A Zuckerman (ed), Zuckerman on Australian Civil Procedure (Lexis 2018)
Id: 10355
A Higgins, 'Privilege Against Self Incrimination' in (ed), Zuckerman on Australian Civil Procedure (Lexis 2018)
Id: 10357
A Higgins, 'Public Interest Immunity' in A Zuckerman (ed), Zuckerman on Australian Civil Procedure (Lexis 2018)
Id: 10358
A Higgins and Michael Legg, 'A Higgins and M Legg, ‘Responding to cost and delay through overriding objectives – successful innovation?' in C Picker and G Seidman (eds), The Dynamism of Civil Procedure – Global Trends and Developments (Ius Gentium: Comparative Perspectives on Law and Justice series 2015)
Id: 6495
Id: 3298

Edited Book (2)

A Higgins and Rabeea Assy (eds), Principles Procedure and Justice: Essays in Honour of Adrian Zuckerman (Oxford University Press 2020)
This collection is in honour of Adrian Zuckerman, Emeritus Professor of Civil Procedure at the University of Oxford. Bringing together a distinguished group of judges and academics to reflect on the impact of his work on our understanding of civil procedure and evidence today. An internationally renowned scholar, Professor Zuckerman has dedicated his professional life to the law of evidence and civil procedure, drawing attention to the principles and policies that shape litigation practice and their wider social impact. His pioneering scholarship is admired by the judiciary and the academy and has influenced several major reforms of the civil justice system including the Woolf Reforms that heralded the introduction of the Civil Procedure Rules, and Lord Justice Jackson's Review of Civil Litigation Costs. His work has also informed law reform bodies and courts in other jurisdictions. Building upon Professor Zuckerman's work, the contributors address outstanding problems in the field of civil procedure and evidence, and in keeping with Adrian's record of always exploring new areas, the book includes chapters on the prospects for a digital justice system, including the new online court being developed in England and the potential role of algorithms in the court room.
ISBN: 9780198850410
Id: 12154
A Higgins (ed), The Civil Procedure Rules at 20 (Oxford University Press 2020) (forthcoming)
The Civil Procedure Rules at 20 is an edited collection of essays and presentations to mark the 20th anniversary of the CPR coming into force. The contributors are distinguished current and former judges, practitioners and scholars working in the field of procedure. All of the contributors presented or chaired sessions at the CPR at 20 conference held at the Bonavero Institute of Human Rights at the Oxford Law Faculty and Mansfield College in June 2019.
Id: 11655

Case Note (5)

A Higgins, 'The High Court conflates principle with history in denying privilege protection to data hack and leak victims: Glencore International AG v Commissioner of Taxation [2019] HCA 26' (2020) 39 Civil Justice Quarterly 99 [Case Note]
In Glencore International AG v Commissioner of Taxation [2019] HCA 26 the High Court of Australia had to decide whether a privilege holder was entitled to injunctive relief to protect stolen privileged documents by relying on their privileged status alone and without resort to the equitable law of confidence. The Court answered that question emphatically in the negative, stating that such a change was without precedent and would amount to an abrupt and unprincipled development in the common law. This note argues the High Court’s decision was wrong on both counts, and its decision represents a missed opportunity to bring certainty to this area of the law in a way which is compatible with the universally accepted rationale for LPP. A basic flaw in the High Court’s reasoning is that it applied private law analysis—examining whether privilege can found an actionable claim right—to what is properly characterised as an immunity against the exercise of state power. It is submitted legal professional privilege should be recognised as an immunity against compellability and admissibility, i.e. legal use against the privilege holder, and that equity should be used in its auxiliary jurisdiction to protect the latter right where necessary.
Id: 12156
A Higgins, 'Too much and Too Little Secrecy in the Law of Corporate Privilege: SFO v ENRC [2018] EWCA Civ 2006 and WH Holding Ltd v E20 Stadium LLP [2018] EWCA Civ 2652' (2019) 38 Civil Justice Quarterly 145 [Case Note]
The decisions in Serious Fraud Office v Eurasian National Resource Corp and WH Holding Ltd v E20 Stadium LLP by two differently constituted, but senior, benches of the Court of Appeal have provided some importance guidance in the law of litigation privilege as it applies to corporations. Whether the decisions mark a change in the direction of the law, however, remains an open question as the decisions, while formally reconcilable, do not sing from the same song sheet. The court in Eurasian National Resource Corp urged a commercial approach to the dominant purpose test consistent with the realities of modern corporate life, and in obiter remarks it also disapproved of the narrow scope of legal advice privilege for corporations laid down in Three Rivers DC v Governor and Company of the Bank of England (No.5). By contrast, the court in WH Holding made clear that litigation privilege should not extend to communications that were commercial in nature, including settlement proposals, and that it would not endorse any rule that conferred greater advantages on corporations than other legal persons. This article argues the courts should be wary of expanding the scope of corporate privilege in both litigation and legal advice contexts precisely because of the modern realities in which corporations operate. However the decision in WH Holding to restrict the scope of the privilege in settlement contexts has the potential to undermine the social value of litigation privilege.
Id: 10677
A Higgins and Adrian Zuckerman, 'Re Prudential plc [2013] UKSC 1: The Supreme Court leaves to Parliament the issue of privilege for tax advice by accountants, what Parliament should do is restrict privilege for tax advice given by lawyers. ' (2013) 32 Civil Justice Quarterly 313 [Case Note]
Id: 3299
A Higgins, 'BATAS v Laurie: apprehended bias and actual failure of case management ' (2011) Civil Justice Quarterly 246 [Case Note]
Id: 3300
A Higgins, 'ECJ confirms no privilege for in-house counsel: Azko Nobel v European Commission' ' (2011) Civil Justice Quarterly 113 [Case Note]
Id: 3301

Journal Article (16)

A Higgins and I Levy, 'Judicial Policy, Public Perception and the Science of Decision Making: A New Framework for the Law of Apprehended Bias' (2019) 38 Civil Justice Quarterly 376
The right to an impartial and independent tribunal is fundamental to the administration of justice and public confidence in it. However, the test for apprehended bias is not informed by psychological research on cognitive biases, and while courts purport to give effect to the views of a fair-minded and informed member of the public on the risk of bias, little attention has been given to what the public thinks in reality. Using doctrinal analysis and drawing on psychological literature, the article argues that the law must be re-examined with a view to closing the gap between the case law on which factors give rise to a reasonable risk of bias, public attitudes, and psychological research on decision-making. The article proposes a new framework for the law of bias, including a judicial code that identifies circumstances when judges should and should not sit based on legal policy considerations, measured public opinion, and relevant psychological studies, and new procedures and tests for courts dealing with cases that are not identified as automatic disqualification or non-disqualification scenarios under a code.
Id: 11653
A Higgins, 'The Rule of Law Case Against Inconsistency and in Favour of Mandatory Civil Legal Process' (2019) 39 Oxford Journal of Legal Studies 725
DOI: https://doi.org/10.1093/ojls/gqz015
Abstract The traditional private, bipolar model of civil litigation has come under strain in a world of mass production and even mass law. The result is that the courts are deciding the same questions of fact or law in multiple proceedings. Multiplicity causes waste and vexation, creates a risk of inconsistent outcomes and raises concerns about adequacy of representation where a court creates a precedent that will affect the rights of others not before the court. This article argues that multiplicity, and the risk of inconsistency that goes with it, is antithetical to legal process using theoretical analysis, including Rawls’s tripartite classification of procedural justice concepts, and doctrinal analysis of the rules of procedure and evidence. It concludes by examining different methods for avoiding inconsistency and argues for the adoption of mandatory legal process for all persons wishing to assert claims or defences that give rise to common questions.
Id: 11648
A Higgins, 'The Supreme Court turns the judicial rhetoric on access to justice up to 11 as it strikes down unaffordable and disproportionate employment tribunal fees, but key questions about the funding of civil justice remain: The Unison Case' (2018) 37 Civil Justice Quarterly 1
Id: 10359
A Higgins, 'Rebooting the cab rank rule as a limited universal service obligation' (2017) 70 Legal Ethics 201
This article critically examines the value and scope of the cab rank rule in England and Australia. Despite the laudable non-discrimination principle underpinning it, the cab rank rule is subject to so many exceptions it is debatable whether the rule has any effect, positive or negative, on access to justice. On the other hand, when the rule is followed, it has the potential to unnecessarily distort the legal services market. Despite legitimate questions about its continued relevance, the paper argues that the rationale for the cab rank rule remains critically important in an age where most people are unable to afford private legal representation and are ineligible for public legal assistance. The cab rank rule could play a greater role in delivering access to justice for all, by “rebooting” it as a limited universal service obligation to provide legal representation for all who genuinely need it but cannot obtain it privately. In practice this would involve the creation of a compartmentalized public cab rank in which all practising lawyers dedicate a small percentage of their billable hours to representing eligible clients for a regulated fee.
Id: 8405
A Higgins, 'The costs of civil justice and who pays?' (2017) 37 Oxford Journal of Legal Studies 687
DOI: https://doi.org/10.1093/ojls/gqx009
This article examines current debates about delivering access to justice in a shrinking state, specifically the Supreme Court's claim in Coventry v Lawrence (No 3) [2015] UKSC 50 that it is impossible to deliver access to justice for all litigants without widely available legal aid, and broader claims that the state is failing in its duty to provide access to justice for all. It argues that the level of public subsidy and the balance between public and private funding for civil justice systems is a question of distributive justice. A critical review of private funding models demonstrates that some have been denied access to justice. However, requiring litigants to pay for their own access to justice, or to even subsidise access for other litigants, is defensible in principle and practice. Private funding models based on cross-subsidisation between users could substantially reduce the access to justice 'gap' experienced by many, provided they meet certain criteria.
Id: 8786
A Higgins, 'Driving with the handbrake on: competition class actions under the Consumer Rights Act 2015 ' (2016) 79 Modern Law Review 442
This paper examines the new class action procedure for competition cases established by the Consumer Rights Act 2015. It examines whether the legislation and the procedural rules for the Competition Appeal Tribunal address the failures of previous procedures, focusing on three issues in particular i) the treatment of conflicting interests amongst class members ii) the rules on certifying collective proceedings; and iii) rules on funding. It argues that while the Act is a considerable improvement on what preceded it, the safeguards adopted will act as a drag on meritorious and unmeritorious claims alike, and as such there is likely to be continued under-enforcement of competition law.
Id: 8404
A Higgins, 'CPR3.9: the Mitchell guidance, the Denton revision and why coded messages don’t make for good case management' (2014) 33 Civil Justice Quarterly 379
Id: 6492
A Higgins, 'Legal aid and access to justice in England and India' (2014) 26 National Law School of India Review 13
Id: 6493
A Higgins, 'A defence of qualified one way cost shifting' (2013) 32 Civil Justice Quarterly 198
ISBN: 0261-9261
Id: 3290
A Higgins, J Walker, D Rowe and C Crifo, 'A Higgins, J Walker, D Rowe and C Crifo, ‘Thoughtful practitioners and an engaged legal community: the impact of the teaching of procedure on the legal profession and on civil justice reform’ (2013) Osgoode Hall Law Journal 155 - 198. ' (2013) 51 Osgoode Hall Law Journal 155
Id: 6494
A Higgins, 'Open door disclosure in civil proceedings' (2012) 16 International Journal of Evidence and Proof 298
ISBN: 1365-7127
Id: 3292
A Higgins, 'Legal lessons from the News of the World phone hacking scandal' (2012) 31 Civil Justice Quarterly 274
ISBN: 0261-9261
Id: 3291
A Higgins, 'Referral fees: the business of access to justice' (2012) 32 Legal Studies 109
ISBN: 1748-121X
Id: 3293
A Higgins, 'The costs of case management: what should be done post Jackson?' (2010) Civil Justice Quarterly 317
ISBN: 0261-9261
Id: 3295
A Higgins, 'Legal advice privilege and its relevance to corporations' (2010) Modern Law Review 371
ISBN: 0026-7961
Id: 3294
A Higgins, 'Corporate abuse of legal professional privilege' (2008) 27 Civil Justice Quarterly 377
Corporate abuse of legal professional privilege is a controversial subject. Cases where abuse is exposed often acquire notoriety for the depth of corporate and professional misconduct they reveal, and act as catalysts for debate on the need to reform the rules of privilege. Those with an interest in maintaining or limiting the privilege take up now familiar sides in the debate. Corporate lawyers and lawyers’ associations usually stress the fundamental importance of the privilege and argue that there is no evidence of widespread abuse. On the other hand regulatory agencies submit that corporate abuse of privilege has a significant cost to the administration of justice, and that the abuse which has been exposed may only be the tip of the iceberg. The article aims to put the debate on corporate abuse of legal professional privilege into perspective by analysing the potential for abuse by corporations; its impact on the administration of justice; examples of abuse that have been exposed from time to time; and the adequacy of existing mechanisms to detect and prevent abuse. The article argues that the costs of corporate abuse are significant, but due to the nature of the privilege its extent is unknown and largely unknowable. Existing mechanisms for controlling abuse have proved unsatisfactory and have inherent limitations. Accordingly, there needs to be serious examination of alternative solutions for controlling abuse, including re-examination of the scope of corporate privilege.
Id: 3296

Other (3)

A Higgins and I Levy, 'The Perils of Peer Review: Can the The Process Be Improved?' (2019) 38 Civil Justice Quarterly 289
This note considers the weaknesses in the voluntary and blind peer review process used by law journals in a number of countries including the UK. Using the editors’ own work as a case study it seeks to highlight the sometimes dramatic inconsistencies in peer review assessments. It outlines a new peer review process that will be piloted by the CJQ to make the process more transparent, and we hope more useful. The central idea behind the pilot is that peer reviews will be published anonymously alongside the article they are reviewing so that readers are able to consider both the quality of the article and the review/s of it.
Id: 11654
A Higgins and Adrian Zuckerman, 'Lord Justice Briggs' SWOT analysis underlines English law's troubled relationship with proportionate costs' (2016) 36 Civil Justice Quarterly 1
Id: 8406
A Higgins, 'Civil justice in a shrinking state ' (2015) 34 Civil Justice Quarterly 221
Id: 6496

Internet Publication (1)

Book (1)

Id: 3297

W (1)

A Higgins and Adrian Zuckerman, 'Class Actions in England? Efficacy, Autonomy and Proportionality in Collective Redress' (2013) 93/2013 University of Oxford Legal Research Paper Series
This paper examines the background to the UK Government’s plans announced this year to introduce opt out class actions in competition cases, the EU Parliament’s opposition to them on autonomy grounds, and the arguments put forward by corporate lobby groups and the academics funded by them against opt out class actions. The paper argues that far from being a restriction on autonomy, there are strong grounds for requiring mandatory class actions for the determination of common claims and defences. Procedures for determining common issues in the one proceeding are a crucial feature of any effective and proportionate system of collective redress. We sketch some ways of encouraging individual participation in class actions without undermining the benefits of collective action, including more democratic decision making in the management and settlement of class actions. Moreover, private class actions are a necessary complement to action by public regulators, ensuring that the task of securing redress for mass harms is not borne fully by taxpayers, and that victims can still obtain redress where regulation is not available or ineffective.
Id: 3302

Research Interests

Civil procedure, tort, causation

Options taught

Contract, Tort, Principles of Civil Procedure

Research projects