Conclusion

Research into the pursuit of civil litigation has consistently shown that very few cases that enter the civil litigation system ever get to trial. Although it has long been recognized that the cases that get to court are atypical of disputes generally, socio-legal research has recently demonstrated that a lower proportion of litigated cases than ever before are reaching the courts. This instantly renders RTS v Muller an unusual case in which the issues at stake appear greater to the parties than the financial or reputational costs and time lost by the parties in the pursuit of the legal issues. Even when contract disputes are pursued to law, the parties generally opt for commercial arbitration rather than adjudication. The Technology and Construction Court remains highly sensitive to the need to compete with arbitration for speedy and effective adjudication, but however much it reforms itself the lure of privacy in arbitral proceedings is likely to trump attempts to bring cases with important legal issues to a public forum. This raises important questions for the development of precedent in the common law and suggests that much of the rethinking of contract doctrine called for by socio-legal and relational scholars will be slow, if it happens at all. This brings with it a danger that doctrine will become even more divorced from practice.

Certain aspects of this case remain a mystery. For many socio-legal scholars this would naturally lead to further empirical inquiry into the dynamics of the disputes. It could be argued that this would allow us to determine the extent to which aspects of the party's claim were transformed as the case progressed through the legal system or the success of the courts and doctrine in meeting the party's needs. Though we have hinted at some of the motivations that might be imputed to the parties above, one of the most perplexing issues raised by RTS v Muller is why, having conducted such lengthy negotiations, the parties did not formalize their agreement as originally intended. Was it just laziness? Were the parties so confident of the profits to be made by both sides that they considered the formalization of the contract unnecessary? Were they confident that agreement had been reached? Were nonlegal sanctions such as blacklisting or damage to reputation available to secure performance? Was Muller simply too preoccupied with meeting the supermarket order to worry about formal closure of its deal with RTS? When we fail to completely understand what has motivated the parties, it is to a socio-legal approach that many scholars can usefully turn.

 
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