Life as a Litigator in 2014/15

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.


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.


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


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.

Where Do We Go Now?

I started this blog in 2011 and as you do at this time of year, I’ve been looking back through the postings to see what I seem to be writing about. The blog is meant to be about property litigation, and to no real surprise I have written quite a lot about that. However, I do keep coming back to a different topic, and this is another piece of that sort.

The topic is the actual way in which people can use their legal rights and the legal system that supports them.

As a practical lawyer I know that for people to have useful legal rights they need a lot more than just having the rights themselves. They need to know about them, be able to get advice, and have practical, and affordable ways of enforcing them.  I have written about the need for all businesses to know some basic law in Law and Business and about some of the other requirements for a practical legal system in Having Rights is Not Enough, and pointed out why Mediation is not the answer,  but this time I want to look at things from another angle. I touched on it in Tell Me what You Want, but I’ve developed it further here.

A lot has been made of the changes in legal procedure and practice over recent years. Some people say that it is a long-needed simplification, and the cutting of miles of unnecessary red tape, that will result in much quicker, easier and cheaper justice for all. Others say that it is the destruction of hundreds of years of justice and a legal profession solely for the advantage of big business, the government and other prowerful players in the field. The argument has raised a lot of heat, but not cast a lot of light, and I’m not going to tackle things in such a broad brush way. Because there was something to be said for both sides.

The practical effect however has changed the legal landscape, and like the earth after the asteroid, it is no longer a place for dinosaurs. This piece is aimed at lawyers who want to survive.

The Sheep, Goats and Dinosaurs

In the new reality you can divide the survivors into two sorts: the sheep and the goats.

The Sheep are major companies, the Government and its quangos, and High Net Worth Individuals, engaged in disputes with other Sheep, and the large firms of lawyers they use, based in the major cities.They deal with the High Court, and the Court of Appeal, and apart from some increase in cost, and some decrease in the time taken by the Courts to deal with things, they will have noticed very little change.

The Goats are smaller businesses, clubs and associations, and the rest of the population. They have disputes with other Goats, and also from time to time with Sheep. They also use Goats –  smaller specialised lawyers and other agencies who adapt rapidly to change. They generally deal the County Court and District Registries, and have noticed very significant increases in cost and in the time taken to deal with their cases, and a large reduction in the resourses available for their use. So they have to be canny and resourceful and will be the heroes of this article.

The Dinosaurs used to be either Sheep or Goats, or their lawyers. They didn’t notice the change in the legal environment until too late, if at all, and so are either trying to carry on as if nothing had changed, with disasterous consequences, or have given up any significant use of the court system, and try to deal with things in other ways.  The lawyers have gone out of business.

How to be a lawyer for Goats

In the new world there are many new rules:

  • Be light on your feet – be ready to adapt to changes quickly. Just because you always did something one way doesn’t mean that it’s the best way now.
  • Keep up to date – there are frequent  changes in the law and the CPR and in the court decisions that follow them. You have to be ahead of the crowd to win.
  • Winning matters – this is why your clients come to you.
  • Keep an open mind – there are lots of different was of doing things. If one way doesn’t work there are many others.
  • Payment by the hour is on the way out. Clients much prefer payment by stages (eg up to issue) or by results. You have to adapt.
  • You’ve got to know the shortcuts. Nobody wants to go all the way to trial. Know how to get summary judgment or default judgment, or the Defence struck out. Or more usually, a good offer.
  • Specialise. You can’t know everything well enought to be really good at it. And being really good matters.
  • Get it right first time. You can’t afford to do things twice.
  • Don’t carry passengers. You need a few experts plus a flexible team to draw on when you need them.
  • Be small. You may grow into a Sheep with guaranteed multiple repeat businesses. But until then you can’t afford to be bigger than you have to be.
  • Make friends. This is the key to being a small business. There are lots of people out there who want to help you and you only need to pay them when you need them. And sometimes not even then. A smile may be worth hundreds.
  • And remember you’re a lawyer. You don’t run the client’s business or life. That’s their concern. But you’re liable to lots of extra obligations as a lawyer. And being one will pay the rent next year, when this client has moved on.

I’m not telling you everything. I need to make a living too. As I said, I’m a practical lawyer. But this is the new reality. And if you ignore it you are likely to go the same way as the dinosaurs. Which is not a good idea, on the whole.

A Happy New Year to you all.

Having Rights is Not Enough

Let me tell you a story. You are walking down a dark lane carrying a box containing a nice watch that you have just bought from a jewellers. A thug comes up to you, threatens you with a knife, and demands that you give it to them. You tell them “it’s mine, I’ve just bought it”. They say that they don’t care, and as you aren’t a mad hero you hand it over and they run off. Your legal rights have been completely worthless on their own. What you needed was a pet leopard, one of those Crocodile Dundee “you call that a knife? This is what I call a knife” blades, or a small troop of cavalry. In other words, you need to have your rights enforced by force if necessary.

Let’s change the facts a bit. You get home safely but the next morning a man from the jewellers comes to say that there has been a mistake and that the watch had been reserved by Mr Big, a local gangster,  and so they shouldn’t have sold it to you and that you would have to give it back. You refuse. They sue you in the local court where the judge is Mr Big’s brother, and despite there being no legal basis for their claim you lose. Again, your legal rights have been completely worthless on their own. You need an honest legal system to enforce the rights.

Let’s change things again. You are sitting at home and admiring your property. A developer calls and gives you a formal claim to buy the house under an option that he said had been granted to him by a previous owner. The price to be paid is a fraction of the true value. You don’t believe the option is genuine (you don’t think it likely that the house once belonged to a “Mr Michael Mouse” of Hollywood) and go to a lawyer. The lawyer explains that under recent legal reforms it is necessary to carry out an enormous amount of work in the early stages of a case, (see here) and so you will need to pay him £25,000 immediately, and that the total cost of the case will be £50k-£100k, or possibly more, of which you may recover half if you win. You don’t have that sort of money, but the developer does. You can’t fight the case on your own and so have to negotiate a poor deal. So your legal rights have been completely worthless on their own. You have to be able to afford to enforce them.

One final scenario. Your local council decide to retrospectively revoke the planning permission on your house and demand that it is demolished without compensation because there was an error in the initial planning application made by the the original owner. This is said to be permissible under recent legislation passed to tighten up planning procedure. You try to find a lawyer to advise you on this complicated matter, but find that under the legislation lawyers are not allowed to advise or represent parties. You try to look up the legal background but it is beyond your limited education and skill. So you never know what your legal rights are, let alone how to enforce them. Your legal rights have been completely worthless on their own. You need access to legal advice when necessary.

These are just stories, as I said at the beginning. But the lessons are very real. Legal rights are only any good if they can be enforced for a sensible price and in a sensible period of time by the people who have them, and for this purpose they need affordable legal advice and an affordable and fair legal system. Of course some matters are best dealt with by a small claims system where people argue cases themselves, and some things are best dealt with by ombudsmen and the like. But there must be an effective system if the rule of law is to mean anything. And recent developments, with small claims now running up to £10,000, vastly increased work needed for fairly ordinary civil cases, draconian penalties if anything goes even slightly wrong, the abolition of Legal Aid, greatly increased court fees, large issue and trial fees for employment claims, and the loss of so many local solicitors who gave advice to local people, make me very concerned.

Because if you can’t enforce your rights you’ve lost them.

Law or Justice – Where Are We Going?

There are two classic forms of Justice:

In the first, a perfectly wise judge dispenses justice under a palm tree. There are no rules, other than a record of his previous decisions, but he achieves the right result because of his wisdom.

In the second a perfectly wise ruler promulgates a code of laws and these are enforced by a a corps of officials. Although not particularly wise they are thorough, logical and incorruptible and they always achieve the right result because of the perfection of the rules.

Most, indeed all legal systems work as a mixture of the two. Exactly where they are placed on the continuum depends on the quality of the judges, the quality of the laws, the sophistication of the community and their lawyers, and so on.

Neither system is perfect: the first system is difficult to predict and hence difficult for others to plan – is the prohibition on killing people or just on killing people unless they attack you? And the second system can fall apart if the laws become ever more complex to take account of more and more exceptions and special cases, so nobody knows what it means, at any rate within a reasonable period.

Where we are coming from

The English legal system has traditionally been based on the first system, with a lot of emphasis being based on the quality of the judges and the legal representation, especially in the higher courts. High Court judges and those in the appeal courts have had an excellent reputation and English lawyers are some of the best in the world. As a result, laws have been reasonably general, and a lot of discretion has been allowed to the judges in interpreting them, and in controlling their own procedure. Even if there have been procedural rules these have always been filled with “unless the court otherwise directs” and judges have been encouraged to look to the  justice of the ultimate decision.

Now the system was far from perfect. It was far too slow  – quite ordinary cases could run on for 2-3 years  – and surprisingly expensive. A lot of time was wasted waiting for various procedural hearings, or persuading the courts to enforce orders that they had already made, and which your opponents were just ignoring. And if you had a bad judge you got some shockingly bad results. So as business geared up into the 80s and 90s things needed to change.

Where we got to

A good place to draw breath was the beginning of this century. In 1999 the Civil Procedure Rules (CPR) came in to replace the Rules of the Supreme Court and the County Court Rules that went  back essentially to Victorian times. These were intended to speed up court procedure and force the parties and their lawyers to get on with things. They provided all sorts of new innovations, such as the exchange of witness statements long before trial, and more detailed disclosure of documents, and provision for expert witnesses, and telephone hearings, and modernisation of the rules on costs, which virtually nobody understood.

They represented a significant movement in the direction of the second, rule-based system. There was far more detailed procedure and the courts were encouraged to enforce it, at any rate by way of penal provisions for costs. But still the judges could alter things, and exercise their discretion, and the (new) overriding objective was

To deal with cases justly, and at proportionate cost.

Outside the courts there had of course been a lot more changes. Governments decided that they didn’t just want to govern the country, but to change things as well. So they set about passing vast numbers of laws on all subjects, including not only Acts of Parliament, but vast swathes of secondary legislation by way of rules and orders and regulations. And they created other bodies to do more of this, and started regulating the financial services industry, and employment, and health and safety, and so on. And the EU of course did the same, only in 15 different languages. So there was an awful lot more law than there had been.

At the same time the IT revolution arrived, making it initially lots easier to prepare much longer documents, such as contracts and leases, and witness statements, and then much easier to keep track of all the new laws using the internet. Whether the two balanced each other is a matter for debate.

Where we are now

There can be no doubt that there are now more rules than ever, and there has been a further significant movement towards the rule-based system. But as well as the steady accrual of more and more regulation, both for the country at large, and within the legal system, there have been several recent developments that have pushed things sharply in that direction, mainly arising from the Jackson Report.

The new costs rules which came into force in April 2013 meant that all cases worth more than £25,000 had to have their costs approved by a Judge beforehand, or, in effect, they would not be recoverable from the losing party if you won. It didn’t matter how unfair this was. Nor that many judges knew little about costs or what was involved in running a case at the sharp end. It was decided that predictability of cost trumped all this. Not that it was a bad thing to have predictable costs, but it was some way from pure fairness.

Then there were the further rules that came into force in October 2013, and which I dealt with in a piece at the time. These emphasise the importance of detailed case management at the first Case Management Conference, which will now last for an hour or two and will plan the whole conduct of the case from a viewpoint of 2-3 months after issue. Lots of decisions that used to be made by the lawyers as matters proceeded are now going to be fixed by the DJ at this hearing.

Now, all litigation is, to some extent,unpredictable. When both sides know what the answer is going to be they don’t fight about it, but come to a rapid settlement. If the facts and the law are clear then you don’t need to spend all that money on lawyers and so on. And in many cases which started off as potentially arguable a bit of early investigation show one side or the other that the experts all think one way, or your key witness isn’t as clear as you hoped, or the legal problem was determined by the Court of Appeal  in an identical case in 1987. So you just have to bite the bullet. But this still leaves a number where the outcome might go either way.

In some of these, things come out of the woodwork as the matter proceeds. You find another witness who you didn’t know about, or who knows more than you expected. Or there are things in the documents that the clients had overlooked and only appear when you are well on the way to trial. Or counsel finds that case in the CA, which was mis-indexed on Lexis. The result is that the case needs to be altered, to accommodate the new witness, or the new documents, or whatever. Various time limits will need to be amended, the other side may need to be allowed to deal with the new material and there may even need to be alterations in the time estimate for the trial.

In the past this wouldn’t be too disastrous. There would probably be penalties in costs, and the interests of justice in coming to the right decision have now been challenged by the importance of allocating the appropriate share of the court’s resources to the case, and to enforcing compliance with rules, practice directions and orders. But still the basic concept of getting the right result. However, all was going to change at the end of 2013.

The Mitchell Case

The latest CPR revision came into force on 13.11.13 and on 27.11.13 the CA gave down the judgement in the Mitchell v NGN case (Plebgate). As you know, they refused to allow the Claimant to recover any costs even if he wins because his costs schedule was 5 or 6 days late. The costs claimed amount to over £500,000 and comfortably exceed any likely award of damages. The reasons given were that the rules were there to be obeyed and the court was going to make an example of them in order to encourage the others: well these were the clear reasons that were applied;  the CA expressed them with a bit more subtlety.

Following this case there have been large numbers of cases in which parties were penalised for being slightly out of time in doing various things, often by having claims or defences entirely struck out or large amounts of evidence disallowed. A few of them were cases in which severe penalties were deserved, after a long history of failures to comply with the rules, but many of these were complete windfalls for the opponents who had noticed minor technical errors. There is a very useful compilation of the recent case-law in Gordon Exall’s website Civil Litigation Brief

One of the most recent and most disturbing cases is M A Lloyd v PPP International, which was commented on by the Nearly Legal blog here. When the case was first out the interest was on the Claimant’s lawyers, who have an interesting professional history. But this was a distraction. Because Turner J decided that the time for service of witness statements, and indeed most other times for doing things, can no longer be extended by agreement of the parties. There has to be an order of the court. And as Turner J is a High Court Judge this is binding on all the Masters and DJs who deal with the vast majority of the procedural work. They are going to notice a big increase in their workload.

What do we conclude

Judges still retain some leeway, but a lot less than they used to have. The rules are coming out on top. And because rules are rarely prepared as a whole code, but usually built up piecemeal filling the gaps and correcting the problems, they often are inconsistent, contradictory, and have unexpected results. There will always be problems that need sorting out. Because at the end of the day the purpose of a legal system is to provide justice to the litigants.

This is why judges have always been given the discretion to sort things out, and look at the overall picture. Of course they need to bear in mind the fact that no system will work if too many people fail to follow the rules and ask to be treated as exceptions. We don’t want to go back to the delays there were in the past. But no system of justice can work if every slight deviation from the myriad of rules is wholly fatal to one side or the other. That is not justice.

The Judicial Oath that is taken by all members of the judiciary is:

“I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”

One would hope that the “laws and usages of this realm” do not entirely overwhelm the obligation to “do right.”

We’ve Got Our Work Cut Out – the New Procedure

I don’t deal only with housing and landlord-and-tenant law, and so I’m interested by the recent changes in civil procedure, and in particular the new rules on cost management (which came in on 1.4.13) and on case management generally (which came in on 1.10.13), and I  recently went to a very useful talk given by one of our local Midlands District Judges all about this.

We were told how cases that are allocated to the multi-track (generally those worth more than £25,000 or likely to last more than one day) have got to have their costs budgets agreed by the other side or approved by the DJ. The costs are then limited to the budgeted figures. And we were told how DJs are now taking a much more active role in managing cases, with major decisions on disclosure, witnesses, evidence and issues being decided by them at CMCs, which will now last much longer as a result.

The talk was fascinating, as much because of the insight into the way the local bench are thinking, the matters that bother them (poor court administration, shortage of staff, loss of files, delays in issuing paperwork) which are hardly any different from those of us on the other side of the table, as well as the guidance to the changes in the law (and in particular the CPR) itself. Time and again we were told that if the Judges are going to make sensible decisions on how to run the cases they need to have lots of information about what is at issue, how disputed matters can be decided and what evidence this will need, how long it is all going to take, and how much it is going to cost. If they don’t get these basics then the orders that they make are either going to be inappropriate, or, after having done this for a time and learned not to do things that afterwards turn out to be a bad idea, much more vague, general and really nothing which cannot be replaced by rules, as had been the case so many times in the past.

The Problem

Now I’m not going to cover all the changes in this article. It’s a bit out of my normal area and there are many others who have covered it far better. And as the DJ told us, nobody knows how all this is going to work out in practice yet, and we need time, and a few decisions of the higher courts before it all beds down.

Also, I’m not going to moan that the courts are trying, yet again, to take the management of our clients’ cases out of our hands and run things themselves, although I might have done so. The older members of you might remember the Woolf reforms that resulted in the CPR in 1989, ending the Rules of the Supreme Court, and the County Court Rules, that had been around since the 1870s. Lord Woolf toured around the country gathering views from the profession before carving things into the stones, and he proposed much the same thing then. It didn’t work because the government wouldn’t give the courts enough money to pay for the extra judges and extra IT needed, and management became ineffective.

I went to one of his meetings in the Midlands and when it came to the questions after his speech I said to him that I, along with many of the other solicitors present, had spent many years building up a reputation in running litigation. Clients came to me because of this. If the litigation was going to be run by the DJs, who have largely left my profession because they didn’t like running litigation, how did he think this was going to be progress? As the clients would have no say in which of a number of DJs sitting in one court are going to manage their important cases they won’t even be able to vote with their feet. And I felt sure that a different DJ would deal with each separate application so there wouldn’t be any continuity. Many people agreed with me, and he really didn’t have an answer.

However, I think that the practical side of serious litigation has now become so awful that another attempt has to be made. A couple of years ago I was talking to the finance director of a medium-sized enterprise in the automotive business. He told me that he had recently become embroiled in litigation with one of his suppliers and was horrified at how things were going on (it wasn’t one of my cases). He had been involved in many projects throughout his career, and had recently moved his factory to brand new premises. In each case he and his colleagues made a plan, and set a budget, and a time-scale. Now these were not always entirely adhered to, and always contained provision for contingencies, but they were manageable, and he could plan the rest of his business around them.

Litigation just wasn’t like that. He was given a number of possibilities as to how his case would progress, a cost estimate that ranged from the improbably tiny to the outrageously huge, and a time scale that ranged from weeks to years. It all depended on what the other side did, and how the court responded. He had no control over it, and was deeply disturbed. He had no criticism of his lawyers, who were doing their best in impossible circumstances, but he couldn’t afford to continue despite having, on the evidence as he understood it, an excellent case, and was going to do a poor deal in order to avoid the uncertainty.

I had heard the same sort of thing many times, as most of us have, but never put quite so clearly. In his view, litigation ought to be a project like any other. It should be managed, budgeted and timed so that it works. OK there will be some uncertainties, but life is uncertain, and we seem to cope with that. The legal system just isn’t delivering on litigation and things will have to change. I wholeheartedly agree with him on this. And the new attempt at cost and case management looks like a valiant attempt to do the job, and it is worth supporting. We have tried solicitor-management of cases for many years and look where we are! If you are going to control cost then the courts will have to fix a price and the parties and their lawyers are going to have to work to it. If the court says that the costs are going to be £30,000 then you will have to get used to doing only that amount of work, and that extra expert, or the possible witness or the third conference with counsel will just have to be cut.

No, what I do want to cover is the matter of timing, and the work that will need to be done in the early stages of a case.

The Solution

The whole management project is aimed at holding two major hearings for every case. The second of these will be the trial, as you would expect, although this will only be reached in a small minority of cases that don’t resolve before then. The first of these will be the new revamped and specially augmented Case Management Conference, which will plan the way in which the whole case will be handled, and in order for it to be effective it will have to be properly prepared for.

Now we are long used to preparing properly for the trial. We index and bundle and brief and file and realise that it is all needed if tedious. It is the end of the process in any event and most cases don’t get that far. There is a lot of time to do all this and the trial date gets fixed in stone some considerable time beforehand.

What is going to be a shock is doing this for the CMC, virtually at the beginning of the case. Not only will it be needed in nearly all cases that issue, as there is little time to settle at that stage, but there will be a lot of things to do in very little time.

The DJ will want the Claimant’s lawyers to produce a CMC bundle. In Birmingham (my local major trial centre) this will have to include

  • Contact details of all lawyers and representatives
  • Claim form
  • Statements of Case
  • Orders made (if any)
  • Case Management Information Sheets (ie response to Directions Questionnaire)
  • Disclosure Reports (DR)
  • Electronic Disclosure Questionnaires (EDR)
  • Estimates of costs of proposed experts with list of issues they will address
  • Draft list of issues to be tried (DLI)
  • Draft direction (incorporating all parties suggestions) (DD)
  • Costs budget in Form H

Some of these are easy and obvious. But some are not – the DR and EDR can require considerable thought, the expert quotes may take some time, and the DLI and DD are clearly crucial and important. And enough has already been written about the costs budget to let you know that it is both crucial and complicated, with a lot of scope for messing things up.

All this is certainly achievable, and it will undoubtedly make the DJ’s task easier if it is properly complied with. But it will take a lot of work, and hence cost, in very little time, especially as some of the items such as the DR and EDR need to be served 14 days beforehand, and the whole bundle has to be filed 7 days beforehand. Especially as these items, plus the draft directions and Form H have to be discussed with the opponents as well, and consideration be given to their views.

The Timing

Now looked at from the point of view of the Claimant this is manageable. They have 6 years (normally) to bring proceedings, and hence virtually as much time to prepare as they want, although this will all come at a cost to their clients. Full statements from the witnesses, lawyers crawling over the documents and  quotes from experts once the issues have been extracted won’t come cheap. Counsel will very obviously be needed from considerably earlier than day one. All this cost will be lost if the exploration shows that there isn’t a case, or at any rate a sufficiently strong one. The days of the “suck it and see” claim look numbered.

If things get off the ground then all that ought to be needed is a tweak after hearing from the Defendants in response to the Protocol letter (before issue) and a further tweak, setting out the issues, after the Defence arrives and you’re nearly there.

From a Defendant’s point of view however things are much tighter. Defendants rarely go to their lawyers until they get the Protocol letter, or shortly before this. The letter will set things out is some but not extensive detail. There is then about a month (which might be extended) to respond, and as the lawyers will be starting from cold they will be vague, general and guarded, while they are trying to see their own witnesses, evaluate the documents, and working out what’s going on and what their best tactics will be. So unless serious negotiations get under way the Claimants are likely to conclude that they are wasting time and issue proceedings.

The Claim Form and Particulars of Claim give 4 weeks, extendible to 8 weeks to respond in a formal Defence. And serving the Defence triggers notice of the CMC, usually about 4-6 weeks away. Remember most of the documents have to be filed 1 or 2 weeks before this hearing, with discussions between the lawyers before this.

The Result

I’m not sure whether the intention is to hustle the parties into early settlement via say a formal mediation, but experience shows this to be most effective either very early on, before issue, when little cost has been incurred and the parties can factor the avoidance of future costs in to their calculations, or much later when all the evidence and documents have been disclosed and everybody can take a realistic view of their chances. Will forcing both parties to incur very substantial cost right at the beginning really help? I suppose it might just frighten them away from the courts entirely, but otherwise I have my doubts.

Now parties engaged in the largest litigation have always had to plan from the very beginning, and deal with the vast strategy that this involves. They realise that pre-issue costs can be valued in tens if not hundreds of thousands of pounds. But this is a system that is meant to handle all claims over about £25,000 – a substantial dispute with a supplier, a contested probate for a modest estate, a serious but not catastrophic injury. Even for a more substantial claim for £100,000 the cost is going to be really significant.  Is this really the best way to manage things? Should perhaps there be some middle way? Or is this the only way to keep a lid on things, and people who can’t afford it should just stay away from the courts, if they can.

Only time will tell.

Keep up at the Back – more changes in leasehold forms

One of the things I like about Landlord and Tenant law is that it’s never dull. Or rather, if it is dull then it won’t be for long, because somebody is going to change it. Often immediately, and sometimes with retrospective effect.

This is what happened with the recent case on the protection of tenants’ deposits – Superstrike v Rodrigues [2013]EWCA Civ  669 –  [my piece from 20.6.13]. The law, as it had been understood since 2007 was changed in the stroke of a key and with retrospective effect back to 2007, leaving thousands of landlords open to claims for penalties from their former tenants for failing to re-notify them that their deposits had been protected when the initial fixed term tenancy expired and the periodic tenancies began. Unless of course the Supreme Court decides that it hasn’t changed at all, or the CA decides that on reflection the decision didn’t mean quite what it looks like it means as at today. We shall see.

Well the law has been changed again, although not quite to quickly – we were warned on 29.4.13 and the change takes place from 1.7.13 onwards. However the consequences could still be messy as it has hardly been the subject of wall-to-wall publicity.

It concerns service charges and administrative charges for residential properties let on long leases. Demands for these have (by s153 of the Commonhold and Leasehold Reform Act 2002) to be accompanied by a summary of the tenant’s rights and obligations. If not then the monies demanded are not due and can be withheld. The summary is prescribed in some detail in the statutory instrument down to the size of the print (not less than 10 point). The summaries are slightly different for service charges and for administrative charges. And they set out in a number of places the powers that the Leasehold Valuation Tribunal has to decide on disputed service charges, approve works, determine breaches and so on. All good useful stuff, although in all fairness they could have a bit more detail here and there.

Well, you are a bright lot and have an interest in this sort of thing, so you probably know that the Leasehold Valuation Tribunal, together with a number of other land-related bodies such as the Agricultural Lands Tribunal and the Adjudicator of HM Land Registry are being amalgamated into the new First-tier Tribunal (Property Chamber) with effect from 1.7.13. Only for England (not Wales) in relation to the LVT and the ALT, although the Adjudicator is being abolished entirely, and won’t be able to continue in exile in the valleys.

There has been quite a lot of publicity given to the new rules which will apply to the FTT(PC)  – the snappily-titled Tribunal Procedure (First-tier Tribunal (Property Chamber)) Rules 2013/1169 – which will be much more like the CPR that apply in the civil courts, and the Tribunal will get power to strike cases out, award more costs in appropriate cases,  and give more effective directions, with teeth. However most commentators (apart from Brady Solicitors of Nottingham) seem to have overlooked the fact that as the LVT goes it would be pretty pointless to keep their name in the summaries served with the demands. So Schedule 6 of the Transfer of Tribunal Functions Order 2013/1036 takes the opportunity of altering the prescribed notice to give the new name, and make a few other small changes.

So, if you are a landlord, or advising a landlord, do make sure you serve the new form of summary with any service/administrative charge demands on or after Monday 1st July 2013, or the charges just aren’t due, which could be embarrassing, and potentially expensive. The actual changes are set out in the SI 2013/1036 and there are forms of the revised notice on Bradys‘ website at

You have been warned!

Can You Assist Me Here? – The Problems with Litigants in Person

There has been quite a lot of fuss, in the legal press and elsewhere, about the proposed increases in the County Court small claims limits, the reductions in scope of both Legal Aid and recoverable legal costs, and the associated increase in the number of litigants who decide to represent themselves – Litigants in Person, or Participants without Lawyers (LIPs).

The current position is that all claims for less than £5,000, or less than £1,000 for personal injury or rental disrepair claims,  are “small claims” in the County Courts.. The significance of this is that the procedure is more straightforward, as you might imagine for the smaller and basically simpler claims. However, because of this, a litigant, Claimant or Defendant, who wins their case, can’t recover the cost of employing a lawyer, apart from some minor costs for issuing the claim, except in exceptional cases. Normally this means that for sensible economic reasons they represent themselves both in preparing the case, and at the hearing itself.

These limits are going up to £10,000 in April this year, with the possibility of a further increase to £15,000 in the future. There are also consultations going on with a view to increasing the PI etc limit to £5,000, although this is by no means certain. To most people a claim involving £10,000, let alone £15,000, is a very long way from being a small claim in their eyes.

As well as this, Legal Aid has been virtually abolished in civil cases, and although you can at present recover the success fee on a no-win no fee agreement (CFA) this is also being restricted in various ways. And lawyers are getting more wary of entering into too many CFAs in these difficult economic times because they are risky, and very bad for the cash-flow. So somebody can have a claim that is over the small claims limit – say £25,000 – and still have to represent themselves.

Now there has been a lot written about this. It has largely concentrated on PI claims and the problems that people without legal training have in trying to get their evidence organised, find suitable expert medical witnesses, assess the value of injuries and so on, against a professional and hard-nosed insurer as Defendant. I’m not a PI lawyer any longer, although I’ve done a lot of it in my time, and I will leave that argument to others. What I will deal with is the problems that arise when cases with one or often two LIPs come on for trial.

The Judge in the Middle

The English legal system is an adversarial one. In other words, the parties fight the case, choose the tactics and evidence, and the judge merely maintains order and picks a winner. This contrasts with the Continental system which is basically inquisitorial. and the judge decides how to investigate the problem that has been put before him by the parties. It applies to criminal and civil cases, although this article is limited to civil disputes.  It is a very basic part of English legal training, and accepted by all lawyers without many questions. Of course, keeping order includes not letting one party behave unfairly to the other by say springing new evidence upon them at the last minute, or devoting vastly excess financial clout in an unfair way. The Civil Procedure Rules (CPR) which govern how civil cases are handled are full of procedures to maintain a level playing field, and to ensure that evidence and legal arguments are put forward in a fair and efficient way, so that the case can, in the normal course of events, be settled on appropriate terms some way before trial, when both parties know the evidence that will be presented, their relative chances, and come to a sensible compromise, saving everybody the significant cost, and risk, of a fought trial.

LIPs don’t generally understand the rules, or the procedure. They often aren’t very good at assessing their chances. They don’t realise that the whole reason that you issue proceeding is normally to compel the other party to come to the negotiating table.They often haven’t gathered the best evidence and so when the other party sees it they don’t recognise its strength. So far more cases involving LIPs, and far, far more involving LIPs on both sides, come to trial.

This causes considerable problems for the trial judge. Not in the truly small claims. If you are arguing over a faulty fridge the procedure is going to be rough and ready, with both sides having their say and a quick decision. But remember, this might involve up to £10,000 as a small claim before very long, and sometimes considerably more in what would normally be a full county court trial, on the fast or even the multi-track. These are trials where the judge and any lawyers appear in robes, witnesses are sworn, and complicated factual disputes, and awkward points of law, are relatively common.

Look at it from the point of view of a judge. I’m not a judge, and I haven’t had any direct input to this piece from any serving judges, but I’ve seen a lot of judging in my time, and you can see the difficulties from miles off.

The first is that, without legal assistance to the parties, the judge will often have a lot of difficulty in working out from the court papers exactly what the dispute is about, what the legal issues are, and hence what important factual points need to be established. The various Statements of Case, such as the Particulars of Claim and the Defence, are meant to draw out the relevant facts and legal arguments on which the various parties rely. The procedure of Disclosure, where the parties show each other all the relevant documents, and the exchange of witness statements long before trial, are all intended to mean that there are no real surprises on the day, and that all that ought to be needed from the judge is a decision on whether they prefer the witness evidence of Smith or of Robinson, and whether they decide the legal point in accordance with authority A v B or with authority C v D. Judges are busy people and only have a short time to look at the papers before a hearing. If the papers don’t set things out clearly there is no time to look up any doubtful points before hand. Especially as there is very little chance that the parties will lodge lists of authorities, or a skeleton argument, or even a clear chronology. The judge will use what little time they have to trying to work out what on earth is going on, and then do their best on the day.

This leads to the next problem: the judge gets very little help from the parties. Now when a judge is trying a case they normally depend to a very large extent on the advocates before them to raise the relevant issues, ask the relevant questions, and come prepared with the relevant arguments. Remember that it as an adversarial system. They haven’t investigated anything. They say things like “please help me Mr Smith?” or “what are the authorities Mr Jones?” or “how do you deal with the sanity clause?” and know that, because the parties are under strict duties of disclosure of documents, and the advocates are under professional duties to deal with all the relevant points of law, whether they assist or harm their clients’ case, they will get a professional answer that they can rely on. Indeed, giving answers that your local judges can rely on is one of the first things that young advocates need to cultivate, or they won’t go far. With a lawyer on only  one side it isn’t  easy. It takes a particular sort of lawyer who will set out their opponent’s legal arguments at their best. With LIPs on both sides the availability of assistance in this way doesn’t exist.

So the judge has to determine what both sides’ cases are, what legal aspects arise, and how they need to be decided. All without help or prior warning.

Whose side am I on?

Most advocates will have met the situation when their opponent, legally but badly represented, fails to put forward some important part of their case. This might be failing to give an important part of their evidence, or to ask essential questions to one of your witnesses, or it might be omitting some key legal argument, or crucial authority.  As the other party is legally represented most opposing advocates take a hard line. It isn’t your job to help the other side out of a hole (unless there is something in it for your client) and you only need to draw the judge’s attention to key authorities, not argue them. So your client gets an unexpected advantage. But this is one of the factors of the adversarial system, and it does mean that your client knows that he has somebody exclusively fighting their corner.

For a judge however it’s a bit more complicated. Their obligation is to do justice between the parties, and although sometimes they take the view that if one lawyer messes up the case the client can claim against them, if the fault is serious enough the judge feels obliged to weigh in. They might ask the party at fault how they propose to deal with the problem, or they might ask the witness some questions themselves, for clarification. They may even suggest that the party consider an adjournment (with penalties in costs) to supply some missing evidence, or to take some formal step that they had failed to take previously.  And they will often argue a point of law with the other advocate. This is usually bad news for the other party because you are exchanging a poor advocate for an extremely good and successful one, who has been good enough to be appointed to the bench, and who, naturally enough, thinks that points the he or she makes are very good. So you have to persuade the judge that they are mistaken, which isn’t easy. Nor indeed, in an adversarial system, very fair on your client. If you lose your client will often think, and say, that the judge was against them, and they didn’t have a fair trial, and sometimes, despite the judge’s best efforts to be impartial, the client is right.

Now the Court of Appeal has said time and time again that judges must be very careful before descending into the arena themselves, and giving the impression, if not the reality, of bias. But they also say that judges are there to achieve justice, and so some intervention is inevitable. Everybody agrees that the problem is an awkward and virtually unsolvable one.

Matters are far worse if one party is unrepresented. Although technically all the procedural rules in the CPR apply equally firmly to unrepresented parties, in practice they are normally treated as guidance rather than matters of obligation. As an opposing lawyer you have to be ridiculously fair to your opponent, warn them of problems they are making for themselves, and can expect little chance of a technical knockout except in the clearest of cases. And you can guarantee that the trial judge will intervene, cross-examine your witnesses with vigor, argue the law with enthusiasm, and generally give you a hard time. If you win then you will know that you certainly deserved to win, and most advocates would prefer to take on a represented party every time.

So the situation with one unrepresented party is difficult. However, with skill from both the opposing lawyer and the judge, plus sense and some intelligence from the LIP, the situation can be managed. It isn’t ideal, but is possible. And in some areas, such as housing possession cases, lack of representation is the norm , and this can be worked into the system, with simplified procedure, advice if not representation at court, and so on.

Silence in Court!

Things change completely when both parties are unrepresented. A very large number of small claims are now between two, or indeed more, parties all representing themselves. And more of the larger cases, that have been allocated to the next grade up in the court system, the Fast Track, involve LIPs as well. These can be quite substantial cases, involving up to £25,000 or even more, heard in ordinary courtrooms, not in the District Judge’s office, and can last up to a day, and not just the hour or two given over to small claims. They are also frequently allocated to Circuit Judges, or deputy Circuit Judges (Recorders) who have far less experience in dealing with LIPs than the District Judges and their deputies who meet them every day. It gives a lot of scope for things to go wrong.

Now I have already mentioned the problems that happen before the hearing starts – the court papers that are meant to set out the parties’ legal positions are often confusing and incomplete, so the judge has little chance of reading his way in to the case in the way that they would normally do. And the parties will not be in a position to guide the judge on what he needs to study, or to summarise what the case is about. But once the hearing does start there are a number of other difficulties.

The first is often just maintaining order and keeping control of the court. In a small claim the hearing will be in the District Judge’s office, round a table, with no court staff present. There are no outside lawyers present to dilute the atmosphere if everybody is an LIP . The judge has the parties, their witnesses and supporters, most of whom have never been in a court before and all will be very nervous.The parties are generally on poor terms with each other before they come in, because otherwise things shouldn’t have got this far. They don’t know the procedure, and are often poor at managing the time needed to present their case. But they are determined to have their say in court and can make up in enthusiasm for what they lack in skill and direction. They can be very hard to handle, and will often not be prepared to accept what the judge says at first saying. Although all judges get training for this, and are indeed chosen for their skill at managing a courtroom, it isn’t easy. There are incidents of violence, and lots of raised voices. It makes it very difficult for the judge to concentrate on the legal points to hand.

The next problem is the taking of evidence. Normally a large part of the case will involve questioning the parties’ witnesses on their statements, sometimes quite vigorously. This is a skill that many LIPs do not have, and the matter is made worse if the statements themselves have not been well drafted. So the judge will have to step in, putting the questions himself. He may have to do this to both sides, or maybe only one, while maintaining an air of complete fairness and impartiality. And all on the hoof, if the court papers have not given enough information to allow him to work up the questions before hand, as an advocate would expect to do. It is far from easy, and makes for some very muddy decisions.

And the third problem is extracting the legal issues and determining them when they have been sprung on the judge without adequate warning, and when the parties can often only have the haziest idea of their legal rights and duties. The judge will often have to argue the legal issues with himself. No judge is an expert on everything, and they certainly don’t keep themselves fully up to date on every subject that might appear before them. They keep some of the standard textbooks on their desk, talk to colleagues and if all else fails reserve their judgment and send it out to the parties after they have had a chance to look things up. It is a possible, but it isn’t a very good way to decide things, and certainly not suited for the more complex cases that are going to be pushed into the unrepresented system.

And the answer is?

There can be no easy answer. This article is intended to point out some of the problems that are largely hidden from professional lawyers. Because every time I appear in court at least one of the parties is legally represented, and the same applies for all my colleagues. We are all used to the conventions, the order of speaking, the deference to the judge, the need to prepare, the “without prejudice” rule  and so on that are a complete mystery to some laymen. It is only when you look behind the scenes, and speak to the judiciary, that the full extent of the problem appears.

It is however clear that we can’t go back to the old days when virtually everybody was legally represented by expensive lawyers at hearings. At the end of the day a system that meant that it cost £10,000 to argue about £5,000 makes no sense. There is also no public appetite to spend the enormous amounts that used to be spent on a Rolls Royce of a Legal Aid system so everybody who couldn’t afford to pay got a subsidised lawyer. Those days have gone for ever.

So what is the answer? It probably lies in the area of a simplified procedure, an increasingly interventionist approach to the management of cases, so they get to court in a better-prepared state, and more assistance from case workers, who are not lawyers but have enough knowledge to help on the day. Or a return to the days when lawyers would take on advocacy only, for a limited and fixed fee. Together with more training for the judges, and a more realistic attitude to listing by the court service. It almost certainly means the end of the adversarial approach to law that has lasted for so many centuries in favour of the inquisitorial approach better known to our continental neighbours, certainly in the smaller sort of cases. I don’t really know – as I said, this article is meant to raise the question, not  provide the answer.

And I understand from my friends who handle family cases that this is an increasingly serious problem there, with both parties engaging in serious custody or financial disputes while representing themselves. That raises further questions that will need different answers.

The powers that be need to address the issue, because it will only get worse as larger cases are handled as small claims, and as more people decide to represent themselves in courts. Those at the head of the legal professions never see this: I doubt if there have been any cases in the Supreme Court where nobody was legally represented, and it must be extremely rare in the Court of Appeal. And of course, all lawyers are lawyers when they are in court. So they don’t see the results.

But they are very real, and somebody ought to think about them. Perhaps you will now.

Interesting Times

Life as a litigator is getting tough, though some would say this is just catching up with problems our colleagues in family and crime have already gone through.

There have been a lot of changes in the courts in 2011/12, and there are more to come. Many local courts have closed, and from 19th March 2012 all money claims will have to be sent directly to Salford and will be issued there as part of Northampton County Court.  They will only get transferred locally if they are defended. Urgent applications, injunctions etc can continue to be issued locally, but from 2nd April 2012 it will no longer be possible to deal with ANY non-urgent work over the counter at local courts. “Urgent” means needing issue or seeing by a Judge within 24 hours. Everything else can be dropped off in a box and will be dealt with later. And the public counters will only be open from 10.00 to 12.00 (local times – nationally there are some variations). Court hearings will continue to take place locally, with support from court staff when judges are sitting. Cynics wonder for how long.

Quite how this will work is difficult to establish. Given the difficulties that can arise when the counters are providing a full service, and the way in which papers regularly fail to reach files for hearings at present, the omens are not good. Possession cases, and the larger applications are likely to be particularly difficult to manage. Given the significant increase in litigants in person it is likely to get worse, as they will be largely excluded from any procedural advice from court staff, who will have less contact with court procedure themselves.

Contrary to recent practice the Court Service did not consult before the recent changes were put into effect.  They have now asked for any comments on the changes at the counters, but the changes are going ahead nationally anyway, so it’s not clear what the point of the comments will be. A recent meeting in Birmingham showed the level of opposition from the judiciary and specialist bar to many of the changes, but at best they may be tweaked slightly.

There are more changes ahead in the future such as increasing Small Claims to £15,000 (?), and together with the changes on funding, the likely abolition of recovery of success fees and insurance premiums, and the loss of referral fees this is likely to result in a significant reduction in civil litigation, of all sorts. Or a radical change in how it is organised and paid for in any event. And this is leaving aside the impact of ABS bodies on the legal landscape as a whole.

We see fewer and fewer of our local colleagues as there are more telephone hearings, or matters dealt with by agency agents, and chances to do interesting and exciting things, like injunctions or complicated applications, fade away. Clients complain, quite fairly, about reducing standards, extra delay, unsatisfactory results. We lose the pleasure of getting things done. Sometimes we wonder why we are doing this at all. And still there are more and more students trying to become lawyers, at enormous expense and wasted effort. Judicial appointments are fewer than they were, and harder to get, as everybody is trying to look for a soft landing. Even pensions don’t seem to be doing too well.

Still, there’s always blogging. And scotch.