August 2013

Traditionally a quiet time of year. And looking at my blog, Twitter feed, emails and the world in general, it has been really. Just a few nuggets to comment on.

Superstrike

Still more fallout from the surprising decision that AST landlords need to re-serve the deposit-protection information at the beginning of the second (periodic) tenancy as well as at the beginning of the first (usually fixed) tenancy. The protection agencies have washed their hands of the problem, saying they can’t do anything, and even the housing minister Mark Prisk has admitted that it wasn’t what was intended and was a mess (here on the Landlord-Law Blog http://www.landlordlawblog.co.uk/2013/08/13/minister-confirms-that-superstrike-goes-against-the-intention-of-the-deposit-legislation/ ) He hints there might be legislation, but don’t hold your breath.

Miranda

Not a housing or landlord matter, but an interesting example of the power and speed of modern media. Not only was the journalist’s friend and his detention (on 18th August) highlighted by the immediate media storm (largely on Twitter) but as I type this (20th August) his lawyer’s protocol letter has been published on Twitter more or less at the same time as it was sent, with requests for urgent response by 12.00 tomorrow. The legal argument seems to be whether there was power under the little-known Sch7 Terrorism Act 2000 to interrogate him and seize his belongings, in which case the power might be excessive, or whether there was no power to do so, in which case he should not have been held and has a claim for his detention. Neither are entirely satisfactory results. Too many references to give a lead – best Twitter comments by @JackofKent.

Richard III

An unusual litigant, in the person of some distant cousins, claiming Judicial Review of the decision to rebury his remains in Leicester Cathedral rather than elsewhere, such as in York which he might have preferred. Amazing decision from Haddon-Cave J on http://www.bailii.org/ew/cases/EWHC/Admin/2013/B13.html Permission to apply granted, much to Leicester Uni and Cathedral’s annoyance. And everybody’s considerable expense. Apparently one in six of us are indirect descendants of Richard III.

Distress

Yes, that sort of distress – by a landlord on a business tenant. The new rules on executions generally envisaged by the Tribunals, Courts and Enforcements Act 2007 look like they may at last be brought into effect from 6th April 2014. The regulations (Taking Control of Goods Regls 2013/1894) http://www.legislation.gov.uk/uksi/2013/1894/contents/made will replace all the old law for seizure by HCEOs, Court Bailiffs and private bailiffs. They are long and complicated and will be followed by two more sets, covering the costs and fees, and the certification regime, but broadly are much the same as the present, with distress (now called TCofG) being limited to business premises, and for rent and by certificated bailiffs only.

Part-Time Judicial Pensions

Following the success of a former Recorder who said that he was entitled to a pro-rata pension with the full-time judiciary, and who won in the SC in February (O’Brien v MoJ) the ET has now assessed how this is to be calculated, and so the case, that started in 2005, may be coming towards an end. Summary in Law Society Gazette http://www.lawgazette.co.uk/news/full-pension-part-time-judge-supreme-court-battle?utm_source=emailhosts&utm_medium=email&utm_campaign=GAZ+20%2F08%2F2013

HS2 Report

Living where I do I have a lot of interest in the proposed new line, which will pass a few miles from my door, and which may halve the train services from my local stations, without giving any benefit to me, or my region, at all. The cost is distressing, and having risen from some £33bn to some £42bn in the last few months it is even more upsetting to see a report that increases the likely cost to the region of £80bn, and confirm that it will lose money and achieve little. Perhaps somebody will see sense. Summary here http://highspeedrailuk.blogspot.co.uk/2013/08/network-rail-report-overlooks-cuts.html

Website and Publicity

I’ve spent some time recently working on our new website and in generating publicity for my firm. It all takes an age, but it’s the only way forward. Link here http://www.davidleesolicitors.co.uk  That’s the place to go for real lawyering, as opposed to this page of comment and speculation.

So I’m now looking forward to my holidays, and I’ll be back with you in September.

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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.

A Time to Look Back

This is traditionally the time to look back, and wondering around the net you see no end of reviews of the year, forecasts for 2012, lists of the top 10 cases, or bloggers, or lawyers and so on.  I have resisted doing a review myself on the grounds that

  • I have only been writing Coventry View since June and that this isn’t long enough to count
  • everybody has done it and I’ll just be repeating things
  • if you do it properly it’s a lot of work.

However, there doesn’t seem to be much happening in the housing area which I’m trying to cover here, and so a review it has to be.

But I won’t just cover a year.

I came to Coventry as a solicitor in 1983, some 29 years ago. In those days County Courts could generally only handle claims for up to £5,000, and anything else went to the High Court. Small claims were less than £1,000. Most possession claims were dealt with by a Circuit Judge in open court, although if you had a big house you may have to go to a High Court Judge in Birmingham, because there was a rateable value limit (I forget how much) which meant using a barrister.

Trials were exciting because you didn’t know who the other side’s witnesses were, let alone what they might say. And although there was a lot less paperwork cases could take years to come to trial.

Against that you knew all your local lawyers.Virtually no litigation could be dealt with by post, and you often had to go off to some obscure court to do a 5 minute application.   Solicitors handled their own cases either personally, or via the barrister that they used for everything. The District Judges (then called Registrars) were a powerful and idiosyncratic bunch, who you fell out with at your peril. The County Court Judges were people you regularly came across in trials, applications and so on. They knew the local advocates, and marked their cards if they were less than professional. And there was Legal Aid that would give you a decent living if you were reasonably efficient.

Things have changed beyond all recognition. I won’t bore you with the details, as most of you will know the changes. Some of the changes have been for the better – the “cards on the table” attitude and the speeding up of cases are the most obvious. But not everything is an improvement. What brought things home to me was the closure of Warwick County Court, and its Crown Court, earlier in the year. The Magistrates Court closed some years ago. This means that for the first time since Saxon times, Warwick has no local court of any kind. Justice is becoming distant.

Warwick, in all fairness, isn’t that big  and it couldn’t really justify a court apart from the history. But it’s just a sign of the future.

In Coventry (which is 15 times bigger) all money claims for the local court are already sent off to a processing centre in Salford for issue. At the moment you post them to Coventry who send them on for you, but this is set to change in 2012. Possession claims are issued centrally (PCOL) though you can still send them to the courts for the time being.  I understand that the plan is that before long the local court offices will close entirely and all cases will be handled in 2 or 3 national processing centres, with local Hearing Centres, staffed with ushers and Judiciary only. Everything else will be dealt with in the processing centres. No local orders, no staff with any knowledge of cases, just a place to have hearings. And in Warwickshire there are now only 3 hearing centres, against the 7-8 when I came.

Now as a solicitor this is something that I can cope with. I can pester people at the end of an email or over the phone quite effectively, and if something is important enough I am sure I will find a way to get it sorted out. But how will the thousands of litigants in person cope? With the virtual abolition of civil Legal Aid and the loss of litigation practices from many regional towns far more people have resorted to DIY lawyering. In the family law field it has resulted in serious delay and problems, and this will clearly spread.  At least up to now they have been able to discuss things over a counter in their local court with staff who know procedure and even some of the law. This will be ending shortly. What will replace it?

Law is a practical service, allowing people to understand and enforce their rights. It isn’t just a pleasant way for lawyers to earn a living. People with problems need local advice and local determination when advice is not enough. First most of the advice has been taken away – the loss of Legal Aid and closure of advice centres. Secondly procedure has become so prescriptive, with pre-action protocols, early disclosure, early exchange of witness statements and so on that even quite ordinary claims become beyond the pocket of  anyone other than large businesses, and the seriously rich. And now the hearings are going to be miles away, with no local connection.

This isn’t progress. How is this making things better for the public? Hasn’t somebody, somewhere, lost the plot?

Do you need to be an expert to argue about wills?

Civil litigation is a funny business. In some ways it is all “litigation”, and a litigator is as different from a non-litigator as a toaster is from a fridge.  It is all about making, or defending, claims and involves courts, threats, steely nerves and the management of risk.

Yet it also has its distinctions, and we would naturally describe ourselves as personal injury litigators, or property litigators; we all realise that the law is too big to know all of it, and we have all been told that Dabbling is Dangerous (even if we don’t always believe it).

This is all very well. Niches are good – you do things you are good at, you attract clients who need this sort of thing, you charge a premium price for a premium product, and you win more often than not, so the clients are happy. However, what happens if your niche closes down? There used to be a steady trade  for people with nice round hands who wrote out deeds on parchment, and there had been for hundreds of years. Or had skill in looking after horses. Then along came the typewriter, or the motor car, and goodbye niche.

This sort of thing has been happening to litigators over the last few years. Out here in the Midlands there is an awful lot less litigation going on than there used to be before the banks tried to take us all over the cliff with them. First the market in disputes between businesses fell away, as everybody decided they just couldn’t risk the cost of fighting, then the remaining pools of Legal Aid dried up, and personal injury work isn’t what it was, with portals, protocols, and talk of fixed costs and the end of the CFA as we knew it. Litigators are scratching around.

One of the few growth areas is Contentious Probate – arguments about wills, trusts, executors, Inheritance Act claims and so on.  This has the major advantage that clients only show an interest when there is a serious amount of money at stake. They only discover a liking for Great Aunt Alice once they find that she is worth the odd £100k or two. They rarely feel it worth while arguing that as a point of principle they should get a half share in her dog and its basket, unlike a lot of the other possible areas such as matrimonial law, or claims against the police, where clients ride their principles up and down all day with little regard for how the humble lawyer is to get fed. No, this looks much more promising.

And all the evidence seems to show that there are more of these arguments about. I’m not sure whether it is because times are hard and people turn to arguing with their families to make ends meet, or that it has become fashionable, like whiplashes were, or it’s a spin off from the Ilott v Mitson case which said that adult children are entitled to claim under the Inheritance Acts. But it is clear to see in the figures.

So lots of worried litigators jump on the band wagon. This new area can’t be that difficult, can it? Well here are a few unusual features that you don’t get elsewhere:

  • All parties thinking they know all the other parties, but not always being right;
  • Actions with 30 parties, including minors, people under disabilities, and cousin Frank in Vietnam, all of whom may need to be served;
  • A chance to get a statement from the person who drafted the will under a Larke v Negus request;
  • Caveats, Warnings and Appearances, dealt with in Leeds;
  • Statements of Testamentary documents;
  • No default judgements or summary judgements, but a chance to proceed with written evidence to proof in solemn form;
  • Substantial chances of winning and not getting your costs, or losing and not having to pay any, or sometimes losing and getting the costs paid out of the estate;
  • And clients who might be worth a fortune if they win, or nothing if they don’t and can’t afford to pay the cost as it goes, and who are extraordinarily difficult to get covered by ATE insurance.

Then you add counsel whose clerks assure you have done lots of this but turn out to know no more than you, and District Judges who handle 3 cases a year (or, more scarily, 3 a day) and ask whether you would like the “usual directions.” And having to administer the estate if you win.

Clients who come in looking for a windfall, and having convinced themselves that they are entitled to it, are very upset if things go wrong, and explaining that all litigation is risky, or the judge had a bad day, rarely cuts the mustard. They expect either success, or a good compromise, or early advice that they aren’t going to get anywhere and should save their efforts for the next great aunt. And in all fairness, this is what they ought to be getting. You don’t rate a dentist who embarks on extensive root-canal work when he really ought to tell you to get the thing pulled out; you feel let down.

No, clients, not unreasonably, expect you  to know what you are doing. You need a private client colleague who deals with the administration, access to expert counsel for an early advice and the trials, and a detailed knowledge of the (odd) procedure and the law. You need to know the courts to go to and those to avoid like the plague. You need to cultivate specialised funding that can only come with a track-record. You need to know those of your opponents who know their onions, and those who are cabbages. And you need to pick your clients, pick your cases, and pick your fights.

Like anything else really. Don’t Dabble. Unless you want to help the swelling numbers in the next popular field – making professional negligence claims against solicitors.

Mediation – Not the Complete Answer

A lot has been made recently about the benefits of mediation. It is seen as a cost-effective and low-risk alternative to litigation, and much encouraged by the government, who are proposing compulsory mediation in matrimonial cases and possibly in all small claims in the County Court. And as small claims are likely to rise to £15,000 or £25,000 shortly (not so small in many people’s books) this is a serious matter.

For those of you who don’t work at the coal face of litigation, mediation is a facilitated negotiation, with the mediator usually flitting between the two parties pointing out the good and bad points in each other’s arguments. Ultimately if he (or she) is successful the parties come to an agreement, which is binding as a matter of contract. If not, then matters proceed, to litigation, arbitration , or just a stalemate, according to the parties’ wishes. And whatever is said in the mediation can’t be referred to in the litigation etc in the same way that “without prejudice” discussions are. It is increasingly popular for all sorts of disputes, from the largest to those between neighbours. It is undoubtedly a Good Thing.

The important point, and in many ways the reason that it works, is that it is and remains voluntary. The parties only take part because they both think it might be worthwhile, and only enter into an agreement because they prefer to do this rather than to take the alternative courses of action. The mediator can’t impose a decision on them, like an arbitrator, or decide a point of law, or indeed insist on anything. It is down to what the parties decide.

Now this means a lot of time in mediations is spent in second-guessing the alternatives. A wise mediator will say”I don’t think a Judge would be very impressed with that argument/that evidence”. Or he will say “do you really want to reveal all that in open court?” Or “do you realise how long/how expensive litigation will be?” The parties weigh their chances and decide to take the least worst option and settle. Or they don’t and decide that they would rather take their chances elsewhere.

It is much like negotiation between experienced lawyers. You think that you have a 50% chance of winning, but that the other side can’t afford to go all the way to court, and so you stick out for 90% of the claim. Or you take the opportunity of backing down without losing too much face on the grounds that your client needs to carry on trading with the other party come what may, and the cost can be factored in to future dealings. Or whatever.

Some of these arguments can be very much the arguments of the bully, or the hard-nosed world of unions and employers. If your client is big enough then they will be able to force a settlement on the other side because they can’t afford to stand up to them. It is reality, the law of the jungle.

But it isn’t always very fair. If your client has a good legal claim then unless the other side is prepared to concede it in mediation, which they may not for good tactical reasons, then the client has to be prepared to call their bluff and go to court, or give in.  And mediation can’t provide emergency remedies, such as injunctions or freezing orders or even insist on (rather than just ask for )  suitable disclosure of documents, let along interrogate witnesses, even key ones.

Now, all of this depend on there being a practical method of getting the claim decided by court, for a sensible cost, and within a reasonable time. Without this, one party can be as unreasonable as they like and it doesn’t matter – nothing is going to happen. If the court system is cut to the bone, then it is unlikely to provide prompt and efficient justice. Mediation won’t prevent this.

Indeed it may make matters worse. If a client has to jump through  a substantial mediation hoop before he is allowed to bring his claim to court,  knowing all along that his thoroughly unpleasant opponent is never going to settle, wasting time and incurring cost, he is getting a much inferior sort of justice than he would if he can decide that mediation is going to be a waste of time and issue right away.

So mediation is not the answer. It is part of the answer, in conjunction with a way to determine disputes that don’t settle earlier. In many ways it is like the view of litigation given by Lord Woolf  when drafting his reforms to the Civil Justice system: litigation is primarily a way of forcing the parties to settle without a trial, as +90% of them do, and the system wouldn’t work without this.

It won’t work on its own, and we must be worried that this point has been lost on the planners and politicians. We need to make sure that it gets across.

Declaration of Presumption of Death

“If somebody goes missing for at least 7 years a court can declare them dead.”

Well, not exactly. They can make various orders on the basis that they are dead – eg payment out of life insurance and unit trust monies. Many professionals are vaguely aware of this. However, it is extremely uncommon in practice, and when it does it is useful to have clear guidance on what to do.

This is provided by the Bayes-Walker case [Bayes-Walker v Bayes-Walker  [2010] EWHC 3142 Ch] involving an RAF Sergeant who went missing from his base in Cyprus and was last heard of in Israel. Mr Justice Warren gives a checklist in less than 3 pages of transcript setting out everything you need to know. And so when you are approached you can get it right first time.

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Note: this does not apply to the far more common case of the death in an accident when the body cannot be found. If there is clear proof that the person was say on the aeroplane that crashed then a coroner can certify death in the normal way. You don’t have to wait for 7 years.

Nor does it prevent say a divorce occurring on the basis of 5 years separation, or even unreasonable behaviour by not contacting the spouse for some shorter time. Subject of course to the problems of service in both cases.