Richard Harrison finds showtunes an inspiration in criticising recent reforms
It is a considerable challenge to comment on issues arising from the recent changes to the civil litigation system by analogy to the musical phenomenon and film, "Les Miserables".
The character Javert is, in very brief summary, a representative of the establishment who remorselessly pursues the hero Valjean out of an obsessive sense of propriety and desire to uphold the strict letter of the law.
Javert is like those who so enthusiastically took up the recommendations of the Jackson costs review and brought them to fruition in the April 2013 CPR amendments.
Some quotes from the original source, Victor Hugo:
"Probity, sincerity, candour, conviction, the sense of duty, are things which may become hideous when wrongly directed; but which, even when hideous, remain grand: their majesty, the majesty peculiar to the human conscience, clings to them in the midst of horror; they are virtues which have one vice, – error."
The songs are more entertaining than the prose, and one song is particularly apposite: "Stars".
Javert believes that virtue, uncompromising rectitude and stern morality are paramount and that they trump humanity, understanding and empathy. He imposes his unyielding moral standards on his fugitive human quarry, fallen from grace, and justifies his persecution by rigorous judgment, as he sings:
"He knows his way in the dark
But mine is the way of the Lord
And those who follow the path of the righteous
Shall have their reward
And if they fall as Lucifer fell
The flame, the sword!"
The solicitors’ profession has indeed been given enough warning about "the flame, the sword". And it has come to pass in the recent case of Mitchell v News Group Newspapers Ltd [2013] EWHC 2355 (QB).)
The upholders of propriety must be the platonic ideal of the legal profession as required by the Rules Committee, who must reach the same high standards as the "stars" of the song:
"Filling the darkness
With order and light
You are the sentinels
Silent and sure
Keeping watch in the night"
Javert declaims that these sentinels are expected, like solicitors under the new proportionality driven "Overriding Objective", to know their place in the skies and to hold their course and their aim. He concludes:
"...and if you fall as Lucifer fell
You fall in flame"
To fall in flame is indeed the consequence of even the slightest default in compliance with the unyielding requirements of the rules. Offenders will be pursued with unmitigated vigour.
Javert is clear about the unbending nature of the Civil Procedure Rules as amended:
"And so it has been and so it's written
On the doorways to paradise
That those who falter and those who fall
Must pay the price"
This is of course a fairly precise echo of the new rule 3.9(1) where the court is required to consider the need to enforce compliance with rule, practice directions and orders when contemplating relief from sanctions.
The current attitude to sanctions and compliance is clearly Javertian. It is however worth recalling that Javert became impossibly conflicted when Valjean showed him mercy and revealed that all was not black and white: a plunge into a tumultuous Seine was the eventual outcome.
So the message to the Rules Committee and the Court of Appeal must be: "Do you hear the people sing..."
Richard Harrison is a partner at Laytons Solicitors LLP
Richard Harrison
Laytons Solicitors LLP
2 More London Riverside
London SE1 2AP