“A judge’s belief that he was hearing the full trial of a claim...when in fact liability had already been decided...amounted to a serious procedural irregularity.”
Clearly it was a complicated case. The claimant had been a trustee of a charity which he alleged owed him some money during his period of office. Initially a judge had decided that the charity was liable and directed a hearing to decide for how much.
Subsequently the former trustee issued a claim for further sums that had come to light. The charity tried to set aside the earlier judgment but that, a counterclaim and three further defences were all struck out.
Somehow it came before another different judge who seemingly started from scratch, considered all issues and decided that the claim failed in its entirety. He did not know that liability had already been decided and that other judges had limited and defined the issues on quantum.
I find it bizarre that this sort of thing can happen. Again, the finger points first at the court and what must be an inadequacy of records and management. Shortcomings are rife now, whatever the Lord Chancellor and his friends would have you believe – see Grim fairytales.
But would all of this have happened with professional legal representation on both sides or even either side? I think not.
The fact is that at the ill-fated trial, the claimant appeared in person and the defendants had a McKenzie friend assisting them.
For those who don’t know what this means, it translates roughly to somebody who is not as bamboozled and bewildered by the court process as the person that they are permitted to assist.
The result is a complete farce. With the assistance of a barrister, on ‘direct access’ (i.e. cutting out a solicitor intermediary to keep the cost down), the claimant has taken it before three Lords Justice of Appeal who have set the decision aside. Now after the expense of that trip it goes back to the original court for yet another hearing.
Who knows how long ago it would all have been resolved with proper representation on either or both sides?
Who knows how long ago it might have settled with a bit of professional knowhow and input?
Things are only set to get worse as Pinocchio Grayling hacks away at resources and tells the world that we are “maintaining and improving”. He is assisted of course by his chums in the insurance industry telling us that the new “clever” is dumb and there is not much law involved.
Catastrophic and injury claims technical manager at AXA insurance, David Fisher, is reported to have told the Jaggards and Taylor-Rose Law Costs and Litigation Conference the week before last that:-
“The more intelligent law firms are dumbing down. Most personal injury claims are a commodity and don’t require a great amount of law”
I have seen at first hand some of the dumbed down work that does not require a great deal of law conducted by one of the outfits Mr Fisher had in mind when he made that remark.
See Cleaning bills and the case where one of our “more intelligent” predecessors tried to settle the claim for first an eighth and subsequently half of the value that we subsequently recovered.
Somehow it’s now clever to be incompetent. The insurance industry has always treated victims and their claims as “a commodity” and will obviously continue to promote these factories full of cheap operatives who can barely spell “law” let alone apply any great amount of it.
It’s a self-serving, cyclical and arrogant view that cares nothing for the destruction of our legal system and everything for shareholder returns.
We shall increasingly see the courts clogged up with nonsense such as the Court of Appeal had to unravel last Tuesday. The problem will be further aggravated by the departure of many judges who don’t need the hassle, and can derive neither satisfaction nor pleasure from the job any more.
It will be the same everywhere as the capable folk with a vocational outlook handover to the lunatics – until there are no more heroes.