The character of Cassandra, according to Wikipedia, is essentially "someone whose prophetic insight is obscured by insanity, turning their revelations into riddles or disjointed statements that are not fully comprehended until after the fact".
Sometimes, I feel like that: especially when I consider the Jackson reforms, the fallout over the Mitchell case and the new emphasis on an approach to litigation which gives priority to administrative efficiency over individual justice.
And especially when I consider that I was harping on about similar issues in various outpourings in various articles in New Law Journal in 1999 and 2000 following the implementation of the original Woolf reforms.
I am highly confident that I am not alone when I take the view that the effect of the interpretation of the new litigation culture in Mitchell has caused immense harm to the civil justice system in this country.
When Charles Dickens in "Bleak House" described the workings of the Court of Chancery, he concluded that it: "...so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give - who does not often give - the warning, 'Suffer any wrong that can be done you rather than come here!'" I fear we are now more likely to have to revisit that warning.
The courts appear to have lost sight of their duty to do justice between citizens and between citizens and the state and have created a culture of fear and antagonism in the profession of litigation. The overriding objective of dealing with cases justly has been qualified by a requirement that this should be achieved at proportionate cost: proportionality is an elastic concept which enables administrative convenience to be elevated to a level where it can trump the achieving of justice.
The enforcement of compliance with rules, practice directions and orders is now treated as of equal importance to all other factors, including that of dealing with a case expeditiously and fairly.
Far from making litigation quicker and cheaper, the new rules have increased the risks and burdens on litigants and Mitchell has killed the flexibility and give-and-take which enabled cases to be managed on a proportionate and co-operative basis.
Against an admitted background of scarcity of court resource and judicial time, the new rules and requirements have ramped up the management burdens on the overstretched system and dramatically increased the number of potential applications to court.
It is only recently that the lower courts have realized this and have taken steps to permit certain extensions of deadlines to be agreed between the parties: the motivation however appears to be administrative convenience rather than judicial principle.
The rigorous enforcement of sanctions which strike out and cripple cases has simply shifted the problem to the more complex area of professional negligence litigation where causation and evaluation of lost chances create far more complex issues.
And costs are not saved by increasing burdens, responsibilities and risks. Each new requirement of disclosure statements, rigorous and unrealistic budgeting requirements and the absolute obligation not to be in breach of time limits will substantially increase the cost burden on clients.
When Lord Woolf originally introduced the concept of case management by the courts and pre-action protocols to resolve disputes before the start of cases, he envisaged a culture of reasonableness and co-operation between litigators which would enable the achievement of his overriding objective. In the case of Biguzzi v. Rank Leisure plc (1999), he emphasized that: "there will be alternatives which enable a case to be dealt with justly without the draconian step of striking the case out."
The new post-Jackson post-Mitchell era seems to have ensured that the culture of co-operation and openness has been dealt a mortal blow unless it can be salvaged by the application of common sense in the trenches of the lower courts and the Masters' corridor.
If it continues to require parties to feel obliged to exploit the new regime of inexorable sanctions, I fear it will adversely affect the reputation of the English civil justice system.
And so I look back to how it was put at the turn of the millennium. Yesterday's publications are today's electronic chip wrapping but at least they are retrievable.
In "An attitude problem" (New Law Journal, 19 February 1999), I wrote:
"The new regime is going to be difficult enough but it will be far harder if the judges see it as a procedural battle between themselves and practitioners with practitioners exposing themselves to sanctions every inch of the way".
In a letter published in New Law Journal on 19 March 1999 headed, "Sanctions and Justice", I said:
"'Sanctions' are all very well but the context in which they are imposed needs to
be tempered with awareness of the commercial realities faced by practitioners and
their clients. I do not wish my clients to be at risk of a debarring order just
because they have been unable, despite my best efforts, to give me full instructions
or 'information' and some keen but over-stretched procedural judge in a distant
court gets all enthusiastic about 'case management' without seeing the bigger picture
...
Niggardly time limits and swingeing sanctions create neither the perception not the
reality of justice. ... If the newly available sanctions are imposed over-robustly,
the penal culture will simply increase satellite litigation. The courts should
temper their enthusiasm to penalise and expunge cases from the system. They should
apply the rules in a measured reasonable way which will avoid the flood of appeals
and tidal wave of insurance claims which Lightman J foresees".
"And another thing", published in New Law Journal on 2 July 1999, summarised what I found annoying about certain aspects of the new regime:
"The carping, sanctions-based philosophy. The notion that judges know best about commercial decision making and resource allocation. The idea that the incompetence of practitioners causes most of the problems of cost and delay. The myth that the case management techniques of the Commercial Court, the Court of Appeal and the House of Lords will work in the trenches of the County Courts and the Queen's Bench Division. The hasty, hysterical introduction of constantly amended and byzantine practice directions ... . The sense that some judges and administrators have just returned from an evangelical meeting."
I returned to the subject in "Achieving justice" published in New Law Journal on 3 December 1999:
"Case management does not mean simply imposing harsh sanctions secure in the knowledge
that the Court of Appeal will not interfere with your discretion. It is not always
consistent with the overriding objective simply to throw cases out or make them impossible
to try: this will simply lead to the problem being transferred elsewhere within the system."
...
"Many robust and apparently reasonable case management decisions simply shift loss
to third parties, whether lawyers or insurance companies, and this generates disputes
at other points in the litigation life-cycle with which the civil justice system still
has to cope at some stage. Dealing with a case justly must include: 'allotting to it an
appropriate share of the court's resources, while taking into account the need to
allot resources to other cases' (CPR 1.1 (2)(e)) but reliance on this can be misplaced.
A struck-out case will still generate litigation elsewhere in the system."
Finally, in "The state of the revolution" published in New Law Journal on 14 April 2000, I commented:
"The main problem with the new system, and it is one which requires review and understanding by those in position of influence, is a misconception of the virtues of 'case management'. As with much in life, it all depends on how where you stand and how you look at things. Simply because a court administrator sees cases being processed brusquely, efficiently and driven away from the system does not mean that the parties are enjoying 'access to justice'. This view of the process can be called 'administration-centric case management'.
A major source of increased cost and frustration comes from courts' inflexibility in allowing parties to agree deadlines or, to some extent, manage cases themselves. That may sound like heresy but it is not a view which is inconsistent with overall support of the reforms. Immense difficulties arise from the assumption that most problems in litigation arise from the misbehaviour of solicitors and, as long as they are kept on their toes, all will be well. If this misconception goes, we will have more enlightened case managers.
The faults of the old system were never really caused by commercial parties agreeing timetables to their own convenience as they attempted to settle cases and allocate resources in a commercial manner. What is always needed is strict control and predictable response from the courts when one of the parties feels that the other party is not negotiating in good faith or is genuinely dragging their feet. But once the court starts imposing case management against the wishes of both parties, the parties are forced to devote resources in excess of what is proportionate. And increased activity has an adverse effect on other court users. The courts should support the parties, not force them into premature expense.
In short, users may not be seeing the same picture of the reformed system as its planners and administrators. The reality may be a brusque, rough-and-ready procedural justice, driven by sanctions and unreviewable case management decisions. The main way to cope at present is to throw money into the earlier stages of litigation so as to be prepared for every eventuality."
Plus ça change, plus c'est la même chose. Trouble is, I am getting used to the brick wall.
Richard Harrison
February 2014
Laytons Solicitors LLP
2 More London Riverside
London SE1 2AP