Justice delayed..

It’s mad Friday and there is plenty to do, particularly with all that additional networking to fit in on top of keeping the production lines rolling.

The ever increasing “efficiencies” at the many court offices we deal with are a big help too...

The latest gem to pass across my desk this morning was the letter from the Salford Centre of Excellence which encloses one of those ugly forms from Registry Trust Limited warning that until we supply the missing information about one of the defendants we shan’t be able to enforce the judgment that we have apparently managed to enter in default on behalf of our client.

It seems that Registry Trust has not received (from the court office) the complete address of the second of two husband and wife defendants so we have had to wait whilst this goes backwards and forwards and is then dumped on us. Our reply today will enclose a copy of the claim form that we filed at the time of issue with the “missing” house number and street name highlighted in two places on the second defendant’s copy. We wait now until after Christmas before we can take any further steps to enforce judgment that we requested a fortnight ago. Great.

That isn’t even a remarkable case.  But there is more.

I am reading the report of yet another call from one of the costs muppets - as my old friend (now retired) Martin Cockx used to call them - demanding a response to a daft opening offer on a bill of costs in relation to a claim that settled without proceedings but where we had to issue to obtain payment of the agreed damages. We've said repeatedly that we need to know what's happening at the court...

We kicked off this case at the beginning of October.  An acknowledgment of service was filed by the defendants suggesting that it wasn’t appropriate for the simplified Part 8 procedure.  By 29 October we had both written to the court with our short views on the matter.

The file was referred to the judge.  We hear it ‘came back’ on 4 December.  We are told that the average time for dealing with it from here (i.e. producing the order in the terms directed by the judge) is 31 days. That’s thirty-one. A month.

Let’s hope that when that finally arrives, some time next year, it is accurate.  Recently, we had a matter with a three hour time estimate listed for ten minutes and then vacated upon objection from the parties.  At the subsequent hearing the judge told me that he had asked for it to be listed for a ten minute directions appointment by telephone initially but that information seems to have been lost forever.

In another case, a notice of hearing with, again, a ten minute estimate was queried and met with explanation that the court staff had misread the judge’s notes and that it should have been in for an hour, which was what our opponents had very sensibly requested.

Meanwhile, from another local court, comes the report that our bankruptcy petition listed for hearing a fortnight ago was adjourned, as we had asked following inability to serve an evasive debtor.  The court staff have absolutely no idea, they say, why at the same time the court did nothing with our application for an order for substituted service which was lodged contemporaneously with the request to adjourn.

I have just had an apology from the wonderful MCOL - the original and best - for sending us notice of allocation, directions questionnaire etc in a case where we unbundled, drafted the defence for our client and filed it along with a notice of acting in person.

Perhaps the biggest waste of time this month so far has been what was a nevertheless very entertaining, and for my trainee illuminating,  trip to one of our local courts on the increasingly rare occasion of a real hearing, with live people all together in the same room!

For me it was (happily) a first taste of relief from sanctions as I ran what looked to be a fairly promising resistance to an application to set aside a default judgment that we entered after an agreed extension of time expired and, still, no defence to counterclaim had been filed.  During a comical discussion between district judge, counsel for the applicant and myself it became apparent that we all had slightly different versions of what one might loosely term a “court file”, originating from Greater Manchester.

In a perfect storm of confusion oop North we seem to have had a couple of days during which there were two notices of transfer and a judgment by the court of its own motion on an application from us which wasn’t an application at all but a request for entry in default of defence.

None of this would have arisen if on receipt of our (clearly-labelled) request for judgment in default of defence to counterclaim the court office had recognized that the defence (to the claim) that accompanied, in the same document, the counterclaim in respect of which we were requesting judgment did not constitute a barrier to that request.

Consequently, the court office did not need to “return” our email that filed the request - still less ask us, when the error was acknowledged, to send it again!

But we reached that point anyway and then had an entertaining debate about whether a judge in Lancashire could make an order in a case where the file had already made its way to Somerset and touched upon such factors as that we now have one unified (sic) county court system across the country.  Sadly, the point was decided by reference to apparent relative timing of two actions, one judicial and the other clerical, with the conclusion that a court officer had stayed the case before, later that same day, a judge purported to enter judgment.

So the order was set aside and we shall wait to see whether some thousands of pounds of costs wasted on both sides will be paid by the court administrator (ha!) when we go back to argue for the costs reserved.

It is all very interesting (at least I hope so) but in none of these cases are we delivering, yet, a commercial solution.  We’re spending more time and more money, whether it is ours or the clients, to achieve at best a badly delayed outcome.

It’s no longer possible in many circumstances to achieve what the law and even the mutilated rules of procedure envisage should be achievable within timescales that should be achievable, if at all. There aren’t enough people to do it, and those who are there don’t know enough because those who did have (largely) gone.

Justice delayed is justice denied as William Gladstone (allegedly) once observed.  This emanation of the State continues to decline and fail through the neglect of government. It remains on the Road to Ruin.

Speak softly...

We had better not count chickens but it was heartening to see the report by Chloe Smith in the Law Society Gazette yesterday about evidence presented to a House of Lords committee this week.

The headline assertion is that fees for Employment Tribunal claims are taking away the incentive for employers to engage in the Early Conciliation scheme (EC) introduced last year.

On the face of it, EC was a cracking innovation.  The essence of it is a rule that sacked employees and others with complaints against their (former) employer cannot begin Tribunal proceedings until they have attempted mediation.

ACAS has a responsibility for the management of the scheme.  I have expressed doubts about the adequacy of resources and procedures there before. I have seen very little information on how the scheme has worked in practice over the last 12 months.

But the big thing with mediation, from the outset, has been the difficulty of forcing participation. I first wrote about this in Mediation's Achilles heel and have made the point that in this scenario you can usually make the horse drink but the question is whether you can get it to water?

The EC scheme is clever in its simplicity.  You can’t begin a claim unless you have attempted mediation and have a code number to prove it, to be displayed on your application to the Employment Tribunal if and when efforts fail.  We all know of course about the short time limits in the Tribunal and further legislation provides that time stands still for a short period whilst attempts are made to settle.

The new scheme came in a year after the introduction for the first time of fees for Tribunal claims. The detail was examined in Fire at will and the most relevant statistic is that it now costs an unfair dismissal claimant a total of £1,200 in tribunal fees to pursue a claim.

That’s somewhere close to the average monthly wage and, to be clear, that’s for tribunal fees only – no solicitors costs included in that figure.

A lot of us said that this would have a devastating impact on claims and effectively amount to a barrier to justice.  The figures have demonstrated that, as reported in Access denied.

The trade union, Unison, has made two attempts to judicially review the fees regime and been unsuccessful but was encouraged by comments by Court of Appeal judges last week - see Judges urge review of tribunal fees.

Now the House of Lords Committee has been told of the effects in practice.  One specialist said that there is a clear shift towards employers just saying “no, issue your claim and then we will talk”.

In individual cases, employers are far more inclined to take the risk that proceedings will be issued, knowing that the majority of claimants have so much to lose, sums that they simply cannot afford. Worse than that, according to one employment silk, the collective effect of this is that employers are being more bullish across the board because they feel less pressure to settle matters generally and have more available budget for legal fees to fight!

At the end of the day it is quite simply a system that does not work because it is so horrifically one-sided.  We can expect the same to happen in many civil claims in our county courts as a result of the eye-watering increases in court fees rushed in by the former Lord Chancellor, Christopher Grayling, just prior to the election.  See Road to ruin.

I explained there why mediation is not the silver bullet.  It is consensual.  It won’t work where one side holds all or most of the cards and simply wants to win.

Let’s have a quick look again at how that works in practice.  I’ll play the bad guy, hell bent on winning at all costs... 

Decent person – “this court business is all too expensive for me but fortunately there is a practical alternative to help us reach an agreement that you should pay me at least some of the money I think I am entitled to.  Let’s go and mediate.

Me – Go boil your head.

Decent person – Oh please! I can’t afford to go to court.  Can’t we mediate?  Everybody says it’s such a good thing.

Me – “have a nice day – loser”.

(Sound of door slamming followed by tears)

Here is the weakness of mediation – of which, don’t get me wrong, I am an advocate – because you can’t, save by some fundamental changes to the principles of our justice system, force it upon people. Some would say that it is akin to trying to negotiate with a terrorist.  

Former US president Theodore Roosevelt is famous for the maxim, “speak softly and carry a big stick”. There are no two ways about it – that is the reality of litigation.  I am all for speaking softly, nicely, collaboratively - and trying to engineer a solution which is good for everybody involved.

But rarely can it be done without the threat of something more unpleasant if the opposition won’t play ball.  It needs a big stick. 

The trouble is – as this government will now find on the road to Damascus – that all the big sticks are on one side of the table, because nobody on the other side of the table can afford one.

The waste land

Another postal delivery and another familiar brown envelope.

No, we’re not talking about the sort of package reminiscent of Hamilton v Al Fayed but the distinctive – if that can be the right word – presentation from the Compensation Recovery Unit (CRU) of the Department for Work and Pensions (DWP) in Tyne and Wear. 

These visibly austere wrappers are complemented by the quality of the confetti inside them.  Who remembers Jeyes and Izal ??

Nothing wrong with that, especially at a location where we’ll scan it on arrival and shred the original.  The country’s still broke, so any reasonable economy is welcome.

It’s a pity that some cretin is wasting the postage and the meagre effort to send it here when, along with a couple of others earlier this week and many more in weeks past, they have nothing to do with us. 

Since the beginning of June 2015, for reasons which are beyond me, this government department has been supplementing the communications that properly relate to cases being handled by my firm with a much larger number of notifications concerning people we’ve never heard of.  They started by sending us fourteen in one post (all in separate envelopes of course) during the first week of June.

Inspection revealed that these were originally addressed to a firm of the same name in Christchurch, Dorset.  That’s about 54 miles from here so close enough for us to know something about the place, far enough away to obviate any confusion – or so you’d think.

Maybe we haven’t wasted enough of our time looking but we can’t find any trace of a solicitor of this name in Christchurch, past or present.  There are two separate firms in the North-East but the only outfit with a remotely similar name in Christchurch apparently doesn’t deal with personal injury. 

Of course, we’ve told the CRU.  We sent them back the first fourteen letters, so it would be a visible problem.  Has that achieved anything?  No. 

Somebody keeps pressing the button.  It’s curious, is it not, that our references are always quoted as either “not provided” or the name of the client we don’t act for.

One of our local courts has recently come up with a variation on this type of puzzle.  A couple of weeks ago we received a Notice of adjourned hearing that didn’t identify either of the parties at all.  The document just has a big blank space top left.

And of course the one piece of unique information, being the case number, was in an altered format unrecognised by our case-management systems.  Fortunately it didn’t take too long to guess at possibilities and check document folders for a close match.

We still don’t know what prompted that particular notice of adjournment for more than two months (though we can guess at the part that may have been played by the opposition) because we can’t get any answer from the court.

One of the Cornwall courts has also made a decent bid for some kind of prize this month.  This is similar stuff we’ve experienced in Devon in the past but it gets better...

At the end of May we were notified by the CCMCC in Salford that one of our actions was being transferred because of an application by one of three defendants to set aside judgment.

Knowing how long these things take in the best of circumstances, we left it for two or three weeks before then starting to chase.  The terminally grumpy letter went in the third week of July.

What we then exposed was the making of an order, in the first week of July, setting aside one of the judgments.  There had been no hearing and the order hadn’t been sent to us in the space of more than two weeks.  There’s not much hope that we get onto sophisticated stuff like notices of the right to apply to vary or set aside, and a copy of the application which nobody had sent to us.

So this comes to the surface along with another order, essentially repeating the set aside of the same judgment, but with the appropriate statements (CPR 23.9) that because the order has been made without a hearing we can apply to set it aside.  That's accompanied (why?) by the order made a fortnight earlier that ostensibly already set aside the judgment but which is obviously defective and ineffective.

Neither has with it a copy of the application which prompted the making of the order.  We have to chase for that.

During the course of the week that follows, a copy of that application is faxed to us.  We’re right up to the time limit for filing the application to set aside within seven days so as a precaution we send by email, and ask for the fee to be debited to our account with the MOJ. 

Here’s where we run into the problem that the Rules still haven’t caught up with electronic payments so that we can’t file such an application because it’s one that attracts a fee – even though it’s no longer one that requires a cheque.

Anyway, we fax it.  When we telephone the court to check that the application has been received and processed, we’re told that anything sent by fax won’t have been received.  The court representative insisted that we couldn’t have sent anything by fax because the machine has been turned off and not used for four years!

Confronted with the report that we received a fax from them – on the same number - the week before and also that we’d received a delivery confirmation in response to our transmission, our contact seemed…..well, confused.

Nearly four weeks later we’re still awaiting notification of the date to challenge an order made without notice or consultation on an application that was apparently filed in Salford nearly three months ago.  This is just great for the commercial client who wanted to move swiftly on recovery of an unpaid and historically undisputed five figure debt. 

On a lighter, almost surreal, note we come finally, for now, to this month’s bid from Lambeth – always a good contender.

In one fairly recent example, we telephoned this citadel of justice to chase issue of some proceedings to be told there was no trace of them, even two or three weeks after they’d been posted, and that it was currently taking somewhere in the region of sixty (yes, 60) days to issue.  

There was a lot of nervous and bewildered laughter this end when a notice of issue arrived in the post less than twenty-four hours later clearly evidencing the fact that the case had been “in the system” all the time.

Standing back for a moment, this is the administrative world that we have to grapple with day in, day out.  We’re still trying to deliver something that resembles an efficient litigation service despite incompetence and delay from almost every direction in which we turn.  Daily, we’re trying to manage our own frustration and that of our clients.

 

Meanwhile, Mr Gove seems set to continue Count Grayling’s job of sucking the life blood out of our court service.  Apparently, we are going to close another 91 courts across the country and save what will, frankly, be peanuts within the overall scheme of things. 

It’s clear that they can’t cope now so how can we possibly take away yet more resources. At the same time, the Lord Chancellor has the nerve to suggest that we’re going to have yet more increases in court fees, doubling that grotesque £10,000 figure to £20,000. (See Road to ruin and linked posts)

For what? 

How about recognizing that actually we need more and better resource, more people, more training, more motivation? Instead we get more cuts to achieve savings that are a fraction of what we waste on stuff which is a great deal less important than the civil justice system.

Perhaps we could console ourselves with the thought that after a lot of screaming and shouting, things often do happen eventually.  Oh, that reminds me – Lambeth...

They must have bucked the trend there (perhaps because ordinary litigants have given up) or they have people with special abilities because this morning we received a document – in a case that we are dealing with – for named clients we do recognise – entitled “Notice of Possession”.  In the main body of the document it tells us this:-

Interesting – worrying, even.  I’m left asking myself whether the exorcism will be listed immediately afterwards or whether that might be released to another priest, possibly in a different dimension.

Will anybody notice, even after the death of what was once the paragon of justice?

Fear…in a handful of dust.

Will Aid

It was surprising and disappointing to read yesterday the report in the Law Society Gazette under the headline “Will Aid apologises to solicitors for Co-op offer”.

The apology follows a mass mailing campaign to thousands of members of the public promoting the provision of wills in collaboration with Co-operative Legal Services, amongst others, and containing the phrase “you don’t have to see a solicitor”.

Many solicitors are reported to be up in arms as a result.  Ben Pepperell of Pepperell Solicitors in Hull accused Will Aid of a “blatant disregard for everything we’ve done”. 

So what’s the problem?  Why shouldn’t anybody promote their – or others’ – services on the basis that they can do it at lower cost than competitors who, they suggest, are over-qualified?

That perennial challenge to balance quality and price to produce something that is perceived by a chosen market to be value for money is central to everybody’s business.  Ultimately, wherever you are in the picture, it’s a largely personal view.  

But what has prompted me and others to say that this recent move by Will Aid constitutes a slap in the face is that for years they’ve marketed their very successful campaign in collaboration with solicitors firms up and down the country.  A key if not unique selling point for the Will Aid scheme has been that the participants have their wills prepared by solicitors.

For those who aren’t familiar with the scheme it has been running since 1988 engaging a growing (presumably) number of law firms up and down the country.  The central feature is that solicitors offer to draw up a will for their client who, instead of paying money to the solicitor, then makes a donation to Will Aid.

Whilst there’s no compulsion on the client to donate a certain or even a minimum amount – anything at all – the suggested levels are £95 for a single will and £150 for a couple making mirror wills.   We’ve found that most clients are willing to donate that much and so each transaction means they make a significant payment to the charity.

It’s true that solicitors perceive a potential benefit in the exercise, even though they’re not charging for the work on that particular occasion.  It’s an opportunity to promote the business, to meet new clients who may have other work to bring to the firm and in some cases leads directly to more complex work beyond the basic scope of the scheme.

Even so, it’s an investment.  During last year’s campaign we raised over £1,500 in donations.  Broad brush, the income from those jobs if they had not been within the scheme would probably have been about double that figure.

Of course, it’s right to say that we probably wouldn’t have had at least some of those jobs but for the campaign and the terms of the scheme.  It also follows from that there is a high risk of people only wanting the service because it’s available at a discount and they are not necessarily looking for any continuing relationship or further content. 

To that extent it’s a speculative investment but it’s something that we and many other firms have done because by and large it is promoting our professional services and the wisdom of using a solicitor.

Now, with an email to, reportedly, at least 10,000 members of the public saying that “you don’t need a solicitor”, Will Aid appears to have performed a volte face.   Why?

The explanation offered by Will Aid Chair, Chris Millward, is that when the last campaign ended in November 2014 they received many further enquiries from people wanting to make a will who said that the promotion offered by their local solicitors had ended.  Step forward at that point the Co-op and others prepared to provide the service in return for a donation as well as a discounted fee.

I don’t know if there was anybody in this neck of the woods who has made enquiries of Will Aid since the end of November 2014.  We certainly haven’t been asked by the charity to consider any further work since the end of the promotion. 

Depending on volumes, we would have considered it.   We started our campaign early, during October, simply because the enquiries were around and we were happy to start fielding them.  Within reason, subject to availability and resources, I don’t have a straitjacketed view of these matters.

It’s all change now, I think.  We haven’t made a final decision, but many others have.  They have said they’re unlikely to deal with Will Aid again and that’s perfectly understandable.  The charity recognizes that, another spokesman having said yesterday:

‘We should have been more sensitive to any potential upset this would cause and the impact of this on our relationship with some of the firms that have supported us in the past.

‘We would like to apologise for this, it is a lesson learned and will form a significant part of how we evaluate future activity outside of our November campaign. We also remain absolutely committed to promoting the value of solicitors in the production of legally valid wills.’

Sadly, there is no indication that the collaboration with CRS and others will end as a result – instead a confirmation that the ‘test-marketing’ project will continue until mid-August.

We’re into the realms here of primarily price-driven services, where the quality may not matter so much as the question of how much it costs.  When it comes to wills, that’s a particularly dangerous approach.

You don't have to search long and hard to find a very recent headline about the distress and expense of litigation generated by cheap wills:

           

'How a £90 will by Barclays lost half my house'

It’s nothing new.  Solicitors have, quite reasonably, been banging that drum for many years. Law firms will tell you that the key to provision of legal services at a much lower cost is the reduction in overhead of a key component of any professional service industry – its people.

It’s a fact of life that people who have spent their time and money acquiring knowledge and gaining experience in earlier years expect higher rewards when they’re able to apply the resultant product of their investment that we call expertise.

Those who haven’t made the investment, for whatever reason, neither expect nor command as much.   You can pay them far less. If you push it down the scale you can pay them almost nothing.  See Peanuts , Cleaning bills and other pages on this blog. 

You can’t escape the fact that if you choose the cheap service there is a high risk that ultimately it won’t be very cheerful.  Whether it’s under-settlement of a personal injury claim, defective title to your home or a botched will and a dispute that eats all of the funds in the estate you get what you (don’t) pay for. 

There aren’t many clear lines to be drawn.  It’s what the customer feels comfortable with.   Do they trust the service provider?  Do they think they’re getting what they pay for?  Is it value for money in their eyes?

Many, probably most, consumers and a lot of corporate buyers will say they just don’t know.  They’ll point to conflicting information and lack of benchmarks – not on price, but on quality. 

There is one particular benchmark that stands out in this analysis.  Bear in mind that you’re dealing with the law.  Which body of people is best trained in the law?  Which occupation is most likely to spring to somebody’s mind when you talk about a legal problem?  Who are the people who by and large sell their business primarily on the basis that they know about the law and consequently are regulated and insured in the provision of legal services? 

That’s a strong message and one that Will Aid has used to promote its campaigns for about twenty seven years.  No wonder there are some red faces now. 

The bottom line

Today I’m inspired by a sunny bank holiday morning in Somerset and a typically heart-warming post by my friend Steve Cornforth, senior partner of EAD Solicitors in Liverpool, at the end of last week. A Win for Justice reports the settlement of a claim at a value which was twenty times that of the defendants’ original offer.

I know that it’s by no means the first such scenario for Steve’s firm and I hope there will be many more happy endings. Injured folk need to be properly compensated. That’s not just my view, or the opinion of a small group of self-interested lawyers. In this country as in many others, it’s society’s view. It’s the law.

Whilst this case is exceptional it’s not rare for injury claims to conclude with settlements or awards that are many times higher in value than the sum insurers were prepared to pay. One of my more memorable cases (see Foxes and chickens) involved an offer-award ratio of similar proportions. There are many others where the gap is not so alarming, but still remarkable.

At this point you may be thinking “Big deal” and wondering ‘what’s the problem?’ Insurers have a position to protect and responsibilities to their shareholders. That’s their business. Claims handlers and their lawyers can’t be a soft touch.

So they try to minimise outlay, perhaps keeping in perspective the expense of that process (yes, I’m smiling too). If they’re wrong then the claimant will ultimately satisfy the court that he or she is entitled to more and the defendant will be ordered to pay the costs as well. Happy days.

Well, as many readers know, it doesn’t quite work like that. Even in the most successful cases there are costs reasonably incurred by the lawyer and chargeable to the client that are not recoverable from the losing party. There is the risk all along the way of something going wrong, regardless of the merits of the claim or the skills of the lawyers.

Irrecoverable costs and litigation risk are meat and drink to insurers. They go with the territory and are largely neutralized by economies of scale.

But the clue to the real issue here is in that reference to lawyers. At the end of the day it’s expert legal representation that makes the difference. Only trained professionals can tell or reassure a claimant that what they’re being offered isn’t enough – and then help them do something about it.

So, fair fight then? No, it isn’t – for these reasons.

Injured victims left without representation will be ‘mugged’, as the Law Society campaigned to warn them two years ago (Never walk alone). The insurance industry knows that is the key to reducing the expense of compensation. There are three main elements of the strategy.

First, get hold of the victim from the outset and try to deal direct. Tell them they don’t need a lawyer, tell them they’ll get no more money by using a lawyer, tell them it will only delay matters and cost them money in the long run. It’s called ‘claims capture’. See Livin’ Aviva loca for an example of it (almost) happening to one of my own personal injury lawyers!

Secondly, if they can’t get the innocent claimant on their own, then insurers will try to steer the victim to a firm of lawyers who, frankly, aren’t up to the job because their business model doesn’t enable them to deploy staff who know what they’re doing or to exercise proper supervision. (See Fun boy three and many others).

Thirdly, insurers run a wider campaign to destroy the independent firms trying to deliver best service to deserving claimants. From the relentless black propaganda about whiplash injuries (Hey diddle diddle) to the slashing of recoverable costs, the war is aimed at removing from the battlefield the champions of the innocent.

Many people I talk to about the mythical ‘compensation culture’ display some degree of reticence about pursuing a claim, whether it’s a current issue for them or a hypothetical situation. Insurers have succeeded (funded by the premia that potential claimants pay) in stigmatizing the concept of compensation for loss and injury caused by negligent third parties.

It’s like paying a club membership fee but being told constantly by the management of the club that it’s not the place to go. They still want you to pay the fee, of course, and they’ll keep promising to reduce it…

And for those mutinous, stubborn victims who want a lawyer with integrity and ability to help them on this perilous journey, the choice is narrowing – again because of insurers’ long-term campaign to eliminate their guides. Good claimant lawyers are leaving the market because it’s no longer financially viable. They won’t be replaced.

The insurance industry have made great strides, with enormous help from a supportive government over the last few years, in progressively reducing the amount of costs that successful claimants are entitled to recover from the insurers of the person responsible. Portals and fixed costs – with the rules ever changing – are all about putting up barriers to justice.

The outgoing Lord Chancellor gave them a considerable bonus just before he left office with an eye-watering rise in court fees of up to 660% at some levels. Mr Grayling and his colleagues said it would have no impact on access to justice – on the “optional activity” of litigation as Lord Faulks described it. Incredible.

Back here on this planet, I can immediately think of one case where my decision to help a potentially deserving claimant will be hugely influenced by the fact that the court issue fee is likely to be £10,000 rather than around £1500 as it would have been less than three months ago.

Insurers complain constantly of “disproportionate costs” with the happy result that a supine government removed recoverability of success fees (the lawyers’ reward for the risk of no payment at all) and continued through costs budgeting to limit the amounts that a winning party can recover from the wrongdoer.

The important thing to remember about costs budgeting, and generally costs-shifting between parties, is that it doesn’t limit the amount either side may spend on the litigation. It’s their choice, in theory, to throw as much as they like at any particular case regardless of where the bill lands at the end of the day.

Theory is one thing. The reality is that whilst injured victims and their lawyers depend case by case on success to fund access to justice, insurers always have a war chest to fight a claim regardless of whether it seems proportionate. If funds run low, they’ll increase the cost of insurance.

And then they’ll complain loudly that it’s the fault of ‘compensation culture’ and ‘fat cat lawyers’.

Here is the ugly disparity between the two camps. Deserving claimants, or more likely their lawyers, have to face a significant risk that any individual case may fail. The ‘easy’ ones no longer generate anything beyond the cost (if you’re lucky) of running them. That risk has been hugely augmented over the last two or three years.

Defendants, or rather their insurers, can always afford to fight and will justify what they do by reference to policy and points of principle. Together they maintain a campaign which is aimed not at the merits of an individual case but at the weakening and destruction of those with the capability to run them. They do not care in the slightest that an innocent victim may not receive the support they need and to which the law says they are entitled.

Cases like the one just reported demonstrate over and again that whilst the law of this country says you may and should have a remedy, the barriers rise and multiply. Innocent victims need brave and talented lawyers but the numbers are in decline. So is the law. (Road to ruin)

A client who has recently signed a CFA with us came from the ABS to which he had been steered by his own insurers having formed a view about their ability and, more important, their true loyalties. He wrote of “a system obsessed with bottom-line profit at the expense of absolutely everybody”.

Couldn’t put it better myself.

Optional activity

Yesterday I was fortunate enough to breakfast with a couple of professional friends who, between them, must know just about as much as anybody could or hope to know about personal injury litigation in this country (and as far as Rome too!)

Inevitably, the main subject of conversation was the news from the Ministry of Injustice last week and the grotesque court fee hikes quickly implemented two days ago. We took the opportunity to develop a (darkly) humorous idea that had been floated briefly in the ether last week on the back of Lord Faulks’ noble proclamation that “litigation is very much an optional activity”.

We thought we might set up our own privately owned civil court.  Naturally, we would try to replicate all the good things about our court service - there are many - but do everything else (far) better. 

We would still charge fees to court users but they would not be anything like those so very recently imposed by our esteemed Lord Chancellor.  We think that at many levels they would probably be more in line with the radically different fee structure that we used to have…last week.

This funding scheme could not be relied upon to maintain the service partly because existing volumes probably would not generate sufficient value at that level and also because usage is always unpredictable. On the other hand, the service needs to be maintained so that it’s there when required, rather than turning into that rusty old machine in the derelict shed (see Road to ruin).

So the simple answer is that we would have a regular subscription paid by all potential users of the system.  We would make sure that everyone who might need to have recourse to our justice facility made a contribution proportionate to their income.

To reflect all these attributes we were trying to think of an appropriate name for it - maybe......er, a “tax”.

Come to think of it, we could use the same model for one or two other things that one might class as “optional activities”.

How about using that fund to support and maintain a bunch of security people that you could call upon when you need them to protect you, your loved ones and your property.

That way, you would not need to worry about whether you could find or afford the money to avoid, perhaps, being invaded by a foreign nation or getting beaten up in the street.  It would be these guys who turn up and defend you, or by their very existence discourage such events to a large degree.  We could call them....”the defence services” and “the police”.

Now, what about some medical facilities.  If we could use this fund to provide hospitals and ambulance services that would be quite useful.  Then, after you had had your head kicked in or been run over by a car you would not need to bleed to death whilst rummaging through your pockets or bag for cash or a credit card and trying to work out if you can afford to have your life saved.

We could call this – oh, I don’t know – a “health service”.

You get the idea. 

If you’re going to have any sort of facility providing benefits to all its members or potential members, then you need to commit to an investment and maintain it, irrespective of whether, in the short to medium term at least, you’re convinced of the need for it.

Whether it’s a friendship or a municipal building, you cannot expect it to be there just when you want it.  You have to accept that you will need to make an investment of time, money or whatever – often when it does not suit you – if you want it to be there when it does suit.

Some things are so important that they must not be left to chance, susceptible to the irresponsible or selfish view that “we’ll worry about that when it happens”.

When it comes to vitally important, and by no coincidence significantly expensive, facilities it is the undeniable duty of the state to take responsibility for the well-being of its citizens.

Defence, policing, healthcare.  None of these should be expected to be self-funding.

So what about justice?  Justice is a cornerstone of the democratic state.

It’s no more an optional activity than being invaded, murdered, raped or bleeding to death. For many people, legal services are a distress purchase and they need to be affordable one way or another.

Our democratically elected government has a duty to ensure this.  Aristotle, Dostoevsky and Ghandi are all credited with similar observations the essence of which is that as a society we are judged by the manner in which we treat our weakest members.

Time and again, you are failing, Mr Grayling.

Road to ruin

If I told you that the price of something – anything – next Monday will be 760% of what it costs you today, where might you think I am speaking from?

Venezuela?  Zimbabwe perhaps? Or some dark dystopia - a creation of Orwell or Kafka?

Well, if you pitched for the third option you were probably closest but for “Orwell” and “Kafka”, substitute Cameron and Grayling.  I’m talking about the UK – today – as we brace ourselves for a price rise that will be more than 2,500 times the current “record low” rate of inflation in this country.

So, what is it?  What is this precious commodity that deserves such a colossal mark-up?

Justice. 

Seriously. 

Our Ministry of Injustice is raising the level of fees that people will have to pay to The Court Service to begin a civil claim – and how. 

For claims worth under £10,000 there is no change to the current structure but above that figure and up to a value of £200,000 the court fee payable will be in all cases 5% of the value of the claim.  For example, a case I issued a few days ago that attracted a court fee of £610 would now cost just shy of £2,500 to get started. 

At the top of this horrifying ladder the difference is alarming.  A current fee of £1,315 rises by 660% (sic) to £10,000.

The new fee is 760% of the old one.  For brief analysis of the figures, see my blog through the link behind that grotesque statistic.

Yeah, so what’s the fuss about?  Everything (except oil) is getting more expensive and the current prices are probably nearly as old as Magna Carta.

Well, no – actually court fees have been rising steadily for many years and there were reviews of the fees order in April and August last year. Periodic (annual usually) increases have always been swallowed, with varying degrees of indigestion.  It’s always too much for one side and not enough for the other – but, hey, that’s life.  Nobody is being unrealistic.

This present move is horrifying.  Some readers may wonder why they have not heard much, or anything, about this coming and the answer there lies in the current Justice Secretary’s own personal brand of “consultation” which by now has passed into legend. 

Christopher Grayling’s track record of deceiving Parliament and the electorate or otherwise plain and simple getting things wrong is largely catalogued in my post about the Ministry of Injustice.  Even since then, he has travelled further down the same career path. 

Yet another judicial review earlier this week found that once again our Lord Chancellor had acted unlawfully.  What a fine example to our legal system, and of justice in the Western world.

But he doesn’t care.  Facing widespread and heavyweight opposition from within the legal industry, he has ploughed on and brought the implementation date of these proposals forward as quickly as possible one aim presumably being to get it done before the Law Society launches its promised judicial review of the increases.

Grayling’s sidekick, Shailesh Varma dismissed the objections last week proclaiming that these price rises would “have no impact on access to justice”. 

Those of us who have been around this industry for a while (and many who have not) said that the introduction for the first time of issue and hearing fees in the employment tribunals would create a barrier to justice for many.  We were talking there of fees to run a fairly typical unfair dismissal claim totalling £1,200.  To put that in context of your average wage earner in this country, suddenly and wrongly out on their ear with no other redress, see Fire at will. 

For those who haven’t twigged yet, in both of these contexts we are concerned here solely with the fees that a claimant has to pay to the government to use the court process.  They are nothing to do with the costs of a solicitor or barrister to help you with the process.  That is another story.

You don’t need a Masters in rocket science to appreciate the likely effect. Guess what?  Official statistics have proved that in the twelve months following the introduction employment tribunal fees, the number of claims brought has dropped by around 75% to 80%. Access denied.

It’s hard not to feel contempt for those at the MOJ who says this will have no impact.  It’s nonsense.  Of course it will.  It’s a no-brainer.

Commercial clients that I act for are up in arms over this.  Litigation is part of their daily business, factored into overheads and cash flow.  £610 may not raise an eyebrow but there will be at least a cough at £2,500 for the same value of claim.

Plenty of examples similar to this have already been cited but what of somebody like the unfortunate lady octogenarian thrown over the roof of a car from the apparent safety of a zebra crossing in the centre of Bridgwater at 9:30 one Tuesday morning?  A handful of other lawyers that I had the privilege to fight alongside in the Court of Appeal twelve years ago will recognise the event that spawned my contribution to what became the Conditional Fee Test Cases.

That innocent and badly-injured pensioner could not afford court fees.  I did what hundreds of other solicitors up and down the country have always done and would still do – funded the court fees and other disbursements, as well as taking the risk of not getting paid for the original claim, two appeals and goodness knows how many battles over the costs of the costs of the costs. 

Pay a court fee of £1,315 on a case with decent prospects worth £200,000?  Almost certainly, yes. Same case, same prospects, same value – but I need to put my hand in my pocket for £10,000.  Mmmm, not so sure.

That’s my outlook and I’m in a business an integral part of which is to take legitimate and measured risks.  There are plenty of other lawyers who recognize all of this. Present the same scenario to an innocent, injured and impecunious man or woman on the street and you know where it’s headed from that point.

 

Either it won’t happen, or it will be picked up by the monkeys who work for Peanuts who have no principles and will take the risk because they have an escape route - selling out the claimant.

It’s not just personal injury which, we know, leaves a nasty taste with many people who often don’t grasp the fact that there are deserving accident victims, by law, entitled to a remedy.

This administration just doesn’t get it. The State has a duty to provide an effective justice system.  That doesn’t just mean that it should exist – whether in the form of the badly mutilated remains of our national network of courts or the palatial Rolls Building in London.

It has to be accessible too.  That means above all else that you cannot move it behind a paywall that is impenetrable to all but large corporations and oligarchs.

Justice is an entitlement of society, not a privilege of the rich - unless we are going to wind the clock back eight hundred years. 

Some of my friends and colleagues, particularly those in what for me is the strange territory of family law, insist that “it will be alright” – even suggesting that this is “a good thing”, to use the parlance of 1066 and All That. 

Why?  Well, because we now have mediation in the sense that it has been around for a few years, everyone is familiar with it and there is in truth a well-organised industry.

Don’t get me wrong – I am a big fan of mediation.  I have trained as a mediator.  I have used those skills in professional and private life beyond the confines of helping parties to litigation to find better solutions than even our best judges could impose.

But it’s not a complete answer.  It’s a scenario where you can probably make the horse drink, but the big question is whether you can lead it to the water in the first place.  For more, see Mediation's Achilles heel.

It won’t work in all cases purely because it’s consensual.  Some parties to disputes, business or personal, are not interested in the ethics and beauty of a collaborative solution.  They just want to win.

Why then commit to a process within which you will inevitably be going to make some concessions when you are holding all the cards and the only way for your opponent to change that is by another process that he or she cannot afford.  It runs something like this (I’m the bad guy in the driving seat here)….

Decent person – “this court business is all too expensive for me but fortunately there is a practical alternative to help us reach an agreement that you should pay me at least some of the money I think I am entitled to.  Let’s go and mediate.

Me – Go boil your head.

Decent person – Oh please! I can’t afford to go to court.  Can’t we mediate?  Everybody says it’s such a good thing.

Me – “have a nice day – loser”.

(Sound of door slamming followed by tears)

Enough said.

These monstrous court fee increases are a death knell for justice.  We are not just taking about the immediate barriers to those with claims today or tomorrow but about the accelerated decline and decay of the civil justice system. 

The machine, through disuse, will fall into decline.  Maintenance engineers (yet more) will look for jobs elsewhere.  The machinery won’t be modernised. There will be nobody who remembers how to use it.

There will be just a mass of user manuals created within the course of a decade, though it will be unclear which one to consult. There might still be a crazy old boy at a desk in the corner of the shed who faintly recalls how to fire it up.  Come to think of it, that could be me or one of a handful of others I can immediately think of.

Joking aside, this is headed into the abyss.  A lot of people, lawyers and their clients, will turn their backs on the system.  The lawyers will go and do something else and those with a problem they cannot afford to ask the judges to resolve will look for other avenues to “justice”.

In some, perhaps many, situations, that highway may be called “mediation”.  In a growing number of cases it may be the Road to Ruin.