The shambolic state of our civil justice system following the infamous Mitchell decision has been highlighted by some powerful voices this week.
Rod Evans, Past President of the Forum of Insurance Lawyers has echoed the thoughts of many, saying ‘we haven’t got a clue what we are doing’. Such is the level of uncertainty and fear felt from litigators on all sides. Speaking at the Westminster Legal Policy Forum he talked about ‘trip-wire’ litigation where the punishment does not fit the crime.
Now any reader of this blog will know that I am no fan of the insurance industry. But Rod Evans is absolutely right. There is now a culture of fear affecting claimants and defendants. The main cause of the fear is uncertainty. We just do not know when we might find ourselves struck out and facing a negligence claim for the most minor of errors. One extreme example is found in the standard multi-track directions which provide for deliver of a Trial Bundle – ‘not more than 7 and not less than 3 days before Trial.’ I know experienced litigators who have lost sleep through fear of delivering their bundle too early! Who is to say that is an unreasonable fear?
In the Mitchell case, the sanction imposed was to penalise the offending lawyers’ by restricting their entitlement to costs. The claim itself was not struck out. But the courts are routinely striking out entire claims, often where there is no sanction within an order or the rules.
This uncertainty is also making it virtually impossible for the parties to litigate in a spirit of co-operation. That is the point made by the London Litigators Association. They recently polled their membership. One response said –
“There is a lack of co-operation amongst solicitors to sensibly extending deadlines, as it is seen as a chance to get your opponent possibly struck out. Hence, there is more game playing than sensible co-operation.”
Indeed, if there is a chance of getting your opponent struck out for a minor technicality you might owe it your client to be merciless, especially if you do not have a particularly strong case.
Against this background of chaos we are being told that court fees are going through the roof –
We are at risk of creating a civil justice system that is a laughing stock. This is leading to an alarming lack of confidence. There is already talk of leading litigation firms side stepping the courts and setting up their own arbitration schemes.
Maybe this is what the MOJ want. It would certainly save money if lawyers stopped using the courts to resolve civil disputes. But it is a sad day for us all if this happens – not least for the less wealthy litigants who can’t afford to use their own private arbitrators.
We need somebody to say enough is enough. We need some clear guidance from the Court of Appeal or the rules committee so that we have at least a glimmer of clarity.