Originally published in New Law Journal, 17 January 2014

Mitchell and Les Mis

Richard Harrison finds further unlikely inspiration from musical theatre

The Court of Appeal’s recent affirmation (27 November 2013) of the first instance decision in Mitchell v News Group Newspapers Ltd represents a triumph of the Javertians.

In an article in this journal (Javert, Jackson and Justice, 20 September), I assessed certain manifestations of the culture emanating from this years litigation reforms as "Javertian". I invoked the self-righteous rectitude of a character from "Les Miserables" and quoted some evocative lines from the song "Stars".

Having thought I had given "Les Mis" its best and only walk-on part in legal commentary, the barricades were breached and I started to think of other characters and songs from the same source.

The outcome of Mitchell is that the courts have emphasised the unyielding and punitive nature of the regime. The result of this is that, despite the professed intention of the new regime to save legal costs, the antagonistic and opportunistic characteristics of certain members of the litigation profession will mean more minor matters being brought to the attention of the courts. It will mean more applications made and more hearings in front of judges who should be dealing with things of greater importance. In summary it will mean increased tactical aggression and increased costs.

There will be no scope for reasonable compromises between lawyers. Everything must be brought to the attention of the courts and gambled on an exercise of discretion to leap over the new "de minimis" hurdle. The Court of Appeal thinks that increased discipline by lawyers as the new approach bites will cause less satellite litigation. That is not the reaction of many in the profession. Indeed, we are positively told to make more applications to court.

Lawyers will, as be accused (as in the old cartoon) of milking the cow the subject of dispute. They will be accused of exploiting the main chance in the midst of misery and mayhem. And who but the ostensibly comic characters of M. and Mme Thenardier exemplify this more?

The Thenardiers are first seen as rapacious innkeepers and cruel foster parents. In "Master of the House" M. Thenardier revels in his ability to charge for everything yet produce services and products of dubious quality.

With "innkeepers" mutated to "lawyers", and "guests" to "clients", we can quite see how the gent of good intent is always seen to be "ready with a handshake and an open palm"

"Welcome, Monsieur, sit yourself down
And meet the best innkeeper in town
As for the rest, all of 'em crooks:
Rooking their guests and cooking the books

Master of the house, doling out the charm
Ready with a handshake and an open palm
Tells a saucy tale, makes a little stir
Customers appreciate a bon-viveur
Glad to do a friend a favor
Doesn't cost me to be nice
But nothing gets you nothing
Everything has got a little price"

The "hail fellow well met" lawyer becomes a predatory grasping daylight robber.

"When it comes to fixing prices
There are a lot of tricks he knows
How it all increases, all them bits and pieces
Jesus! It's amazing how it grows"

The Thenardiers exhibit classic negotiating skills in raising the price paid by Valjean for the orphaned Cosette: the two main ploys being (a) the paid disbursements on medicines for the poor child and (b) the possibility that Valjean's intentions towards the child might be less than honourable ("Waltz of Treachery").

Commentators have been quick to identify the flaws in the Court of Appeal approach. The likelihood of satellite litigation over the consequences of mistakes has increased. Messrs Thenardier and Co will be waiting in the wings. The problem has not be eliminated but moved to their sphere of influence.

The culture of co-operation has been hobbled: for years practitioners have been encouraged to adopt a "cards on the table" approach to litigation and to work sensibly together to resolve the matter as early as possible and at proportionate cost.

As Rod Evans, president of the Forum of Insurance Lawyers says:

"The Court of Appeal's (almost) zero tolerance to delay will mark a return to the tactical litigation that had reduced significantly, certainly in the most serious cases. I have no doubt that parties will now be tempted to try and catch each other out". To the great benefit of Thenardier-like practitioners.

We see the point in the climactic, "One Day More". As:

on the assumption that the next day they will each discover what their God in heaven has in store, the Thenardiers revel in the prospect of easy pickings:

"Watch 'em run amuck, catch 'em as they fall,
Never know your luck when there's a free for all,
Here a little 'dip', there a little 'touch'
Most of them are goners so they won't miss much!...."

If we are not careful, we shall all in this new cultural revolution be turned into, or perceived as, similar opportunists. The triumph of the Javertians is an opportunity for the Thenardiers.

Richard Harrison is a partner at Laytons Solicitors LLP

Richard Harrison

richard.harrison@laytons.com

Laytons Solicitors LLP
2 More London Riverside
London SE1 2AP

www.laytons.com