In another life I am on the Council of the Warwickshire Law Society, and I thought that you may like to see the report that I prepared for their recent AGM. I was told that it looked a bit too gloomy, and that may be right. But I think that I end up in the right directions. What do you think? – leave a comment below, or tweet me at @CoventryMan.
Life as a litigator is getting harder and harder. And the coming year looks like it could be worse than the year just past, which was, shall we say, challenging.
While preparing this report I looked back at my February 2014 effort and I see that it recorded a succession of blows, including case management, the Mitchell case (strict compliance with court orders essential), the increase in litigants in person, the Superstrike case (AST landlords must give information on deposits twice), and the loss of a number of local firms. All pretty discouraging stuff. So I ended up hoping for a slowing in the rate of change in order to let us adapt.
Well, we didn’t get that. We have had continued and accelerating change, and this seems likely to continue, regardless of who gets in to No 10 in May.
IN THE COURTS
From April 2014 the County Courts have all been amalgamated into one County Court, so Coventry County Court has become The County Court at Coventry. In practice it has the same hearing centres that were there previously, but the procedure for closing or moving them has suddenly become a lot easier. Already all money claims are issued in Salford, and one wonders how long it will be before all the other claims follow. Or the trial centres reduce yet further. My Family colleagues are already facing the prospect of having to go to Nottingham for hearings, and we will surely not be left alone.
If of course we still have hearings at all – you may have heard the apparently serious suggestion recently that all civil cases for less than £25,000 that could not be resolved by telephone mediation should be dealt with by judges by way of internet decisions, normally without any sort of hearing, and without the intervention of lawyers at any stage.
This of course supposes that people will continue to litigate. All of you must have heard of the proposed increases in court issue fees that are intended to take effect in April. These will stay much the same up to a (small) claim for £10,000, but will then rise to 5% of the amount in question, so a claim for £40,000 that currently costs £610 will shoot up to £2,000 and a claim for £150,000 from £1,115 to £7,500. Claims over £200,000 will cost £10,000 to issue. There will be other fees including potentially increased trial fees as well. And funding costs can’t be recovered by the client any more even if they win.
The Government states that 90% of all claims will be entirely unaffected by this (no doubt correctly as the vast bulk of claims by number are indeed small debt-collecting claims) and that court fees are a relatively small part of the total cost of a case. However, they are a cost that has to be paid for up front in non-refundable cash, and this will significantly increase the cost of disbursements for even a moderate personal injury claim. One wonders if there will be a similar reaction to the introduction of Employment Tribunal fees a few years ago, when the number issued fell by some 80% after the introduction – probably not as court actions tend to involve more money anyway, but it is sure to have some effect. We shall have to wait and see.
IS THERE ANY GOOD NEWS?
Well the Mitchell case (see above) has been superseded by the much more sensible Denton case, which allows the courts to balance the errors against the interests of justice as a whole. And Superstrike is being overruled by a section in the Deregulation Bill which is due to be approved by the House of Lords on 4th March and so should be passed before the General Election.
In the larger world, Scotland hasn’t drifted off into the North Sea, the new Distance Selling Regulations which apply to solicitors who see people away from their offices aren’t as frightful as they first appeared to be, and if everything goes pop the frightening case of Raithatha v Williamson, which said that a Trustee in Bankruptcy could potentially seize the whole of a pension pot after the pension revisions in April 2015 has met the equally authoritative case of Horton v Henry, which said that he could not. So we all may have some future
BUT WHAT DO WE DO?
We can’t go on the way we have done before because things are radically different. 1,061 solicitors firms closed in the year up to November 2014, out of 10,312. It could be yours.
I’ve thought a lot about this sort of thing over the last few years, and written a number of pieces in my Coventry View blog, most recently telling everybody to be a Sheep if you could, or failing that a Goat, but not in any event a Dinosaur. It seemed a good idea at the time, and involved being Light on Your Feet, Keeping Up to Date, Winning, Knowing the Shortcuts, and Remembering that you are a Lawyer, among other things. I think it’s worth reading for yourselves – but then I would.
Whatever you do, though, have a plan. Nobody owes us a living. Politicians hate lawyers because they have discovered that it is much easier to attack lawyers than the public, and without the lawyers the public can’t in practice enforce the rights that they have. Why abolish the right to claim against the NHS for clinical negligence if you can just make it too expensive to do so, or can arrange things so that your nearest solicitor is in Bradford? So they will carry on doing so, regardless of the result in May.
Litigation matters because it is the sharp end where clients enforce their rights. Our colleagues grant them rights in the contract or the will. If they can’t enforce these rights they are worthless, so this is where we come in. Our colleagues are useless without us. And if we are good at it we can make a good living and enjoy the work as well. A win/win situation.