The current system for the Administration of civil justice is broken. The historically understood concept of Justice is no more.
The rules /decision must have the flexibility to cope with real life situations. They should not be applied as if life is lived in an academic legal utopia. Rules must of course be obeyed but there was in the past a notion of “legal common sense“ which would normally prevail with concomitant sanction applied by judicial discretion, tempered by a realistic possibility of appeal where, in a rare case, that was justified.
The move away from the justice based approach is to be deprecated, is contrary to what a reasonable lay person is entitled to expect and is an abrogation of the responsibility of the state to provide for its citizens a fair system for resolving civil disputes.
Inconsistency of Approach
We have experienced a notable inconsistency between different District Judges, even in the same court, in relation to the application of decisions of the higher Courts which sadly are in themselves inconsistent. In Mitchell it is suggested that the ruling is designed to achieve certainty and to avoid the need for Satellite litigation. In practice it has had exactly the opposite effect.
The inconsistency of approach has led to difficulty dealing with the other the party in cases and also in advising clients. For example, if we are compliant with Directions in a case and the other party is not then due to the inconsistency of approach between District Judges we are feel totally unable to advise clients accurately on how the Court is likely to deal with the defaulting party in any particular case. If a client cannot be reliably advised, the certainty desired in Mitchell is a cruel, expensive myth. The inevitable effect is more hearings, not less.
We are now in a position where we have decide as a matter of firm wide policy that we are unable to give the other party an extension of time to the Courts directions .We have made that decision on the basis that the grant of an extension may be negligent in that it could have the effect of depriving our client of a procedural advantage. The result is that procedure overrides substance. This attitude has been fuelled by shall we say surprising decisions made by various courts.
An example of the inconsistency is that we recently dealt with a case where the Defendants served their witness evidence 10 working days late. Their application for relief from sanctions was granted on paper. This is in stark contrast to the much publicised cases of recent where evidence has been disallowed where a direction has been missed by a matter of hours. How in these circumstances can we advise our client on how the Court is likely to respond to such a breach whether this be a breach on our part or the Defendants?
In another case the Defendant asked for permission to obtain their own medical expert in a multi track personal injury case. We did not object but the court refused their application because no cost information had provided for that experts report, even though it could have been given at the hearing itself. In another case, on the identical point the District Judge decided that the likely cost of the medical evidence could be taken to be known from past experience and the exact opposite result was reached, our reference to CPR requirements for costs information having been literally shouted down by the judge who allowed the Defendant to obtain a report.
Since Appeals of case management decisions, previously very difficult are now effectively impossible, the perfect storm has been created.
Court Delays/Lack of Resources
There is excessive delay with the Courts in not only typing and serving Orders made on the courts own initiative, but also in listing applications presumably as they are swamped with what should be unnecessary applications to extend time /seek relief for sanctions. We have, on more than one occasion, received Orders from the Court specifying that the Order be complied with by a particular the date that has already passed by the time the Court Order has been received. Clearly we cannot comply with such Orders but due to the inconsistency and consequently unpredictable approach of District Judges we cannot anticipate what the Court’s response to this will be and therefore do not know what we need to do to remedy the problem. Is an Application for relief from sanctions required in these circumstances? Even though we could never comply as we knew nothing about the order. An example – order received 26th February – list of documents to be served by 23 January. Claimant to be granted permission to obtain medical report from XX such report to be disclosed by 28th February. Compliance was plainly impossible as we had not even instructed the expert since permission was required.
Such orders bring the court into disrepute in the eyes of both the litigant and their lawyer, cause acute anxiety, and create unnecessary work for both practitioners and courts. We have tried to deal with the matter informally by telephone /letter rather than a formal application but we have not even had the courtesy of a reply. This may be due to inadequate executive and/or judicial time but in the meantime we dare not instruct our expert as we may not be allowed the costs of his report. This sort of thing did not happen pre LASPO save on infrequent occasions and in such circumstance we would be confident that common sense would prevail. Sadly this is no longer a factor that seems to be taken into account. We have heard from the Judge that he is not prepared to change the order. An order that could never be complied with as time prescribed within it had expired before it was made! Our client now has no alternative but to Appeal – leaving civil justice entirely discredited in his eyes, and ours.
On a more practical basis, the Courts vary hugely across the country as to how they will accept documents. Some Courts will only accept Orders sent by email, some Courts will not accept email. Some Courts will accept emails only if they attachments are less than 5 pages long, some Courts no longer accept filing of documents by fax but have not publicised this. This problem needs to be resolved as part of the creation of the National County Court. If these draconian sanctions are to remain as a result of any breach then the means to file documents at Court has to be consistent.
We believe the sanctions imposed for breaches following Mitchell are far too draconian and have moved us away from a justice based approach to civil claims. There is a willingness to impose what used to be the ultimate, and rarely used, sanction of strike out with impunity. It is almost as if the Judges were issued with “strike out pills “in their training pre LASPO. In our opinion the sanctions do not assist or go towards the justice of a case and are in themselves applied inconsistently. A slavish regard to procedural dogma now overrides substance. This creates huge injustices and impacts upon our ability to advise clients as to the likely progress and even the outcome of their case. Different and more proportionate sanctions are required.
We believe that Form H is entirely unfit for purpose. It is too complex and in our experience many District Judges at CCMC do not understand it or chose not to have meaningful regard to it. We have found that some Judges are taking a broad-brush approach to costs budgeting, whereas some are scrutinising the Form H word by word and number by number.
In a recent clinical negligence case we spent the best part of a week preparing form H and trying to agree /disagree items with our opponents. At the joint CMC and CCMC the District judge has a quick look at the budgets and then said “this is rather tricky isn’t – it costs management dispensed with.” The result hours of unnecessary and unproductive time that should have been spent on the substance of what is a complex case.
Preparation of the Form H is hugely time consuming and does not follow any recognised analysis of how we would record time or consider projected work to be done in the future. It does not even accord with the lay outs of Bills for Detailed Assessment. Given that the rules require parties to front load the work they do before they issue proceedings it is doubly irrelevant as the court do not examine pre issue costs. The sanctions for failing to comply with cost budgeting rules are disproportionately draconian. To, in effect, deprive a party of the ability to obtain legal representation for want of a form, that is rarely actually looked at, is in our opinion, contrary to the justice of a case and simultaneously otiose of and in itself.
Our experience is that it is probably looked at by a judge in perhaps 25 % of cases in which the form is prepared. The corollary being that 75% “get along fine” without bothering with Form H. In our view it should be dispensed with save in respect of cases with costs over circa £250,000 base solicitors costs.
We urge those responsible to put right this intolerable position. It is a national disgrace at the moment. We fear that there will be no fundamental change in the short term. In the longer term reform will happen. History will Judge this era of “Civil Justice” with little kindness.