A blow for case management?

The Gazette reported last week on a case in which former firm Bevan Ashford faces legal action over advice given free of charge by a newly qualified solicitor. Given the number of firms out there offering a free half-hour of advice to new clients, it’s no wonder that so many solicitors have commented on the story.

But there is a whole other aspect to the case, which might affect how far judges are prepared to go in future when it comes to managing trials. Padden v Bevan Ashford was an example of quite daring (if ultimately flawed) case management, at a time when Lord Justice Jackson and the senior judiciary are seeking to instil a ‘change in culture’ towards a more hands-on attitude to managing cases by judges.

But in this instance it backfired.

What would probably have been a two-day trial was halted after the first day by the trial judge, only to then be overturned on appeal, with the case sent back down to Bristol District Registry to start again at square one. The trial judge had stopped the trial because he very firmly believed the claimant had not established the required breach of duty by Bevan Ashford. He saw this as clear cut, believing the claimant’s case would impose such a duty on solicitors who give free advice to clients coming in off the street as to be an ‘absurdity’.

But unfortunately for the judge and for the defendants, the Master of the Rolls Lord Neuberger disagreed, and decided the case should be heard. Neuberger noted that the decision to halt the proceedings had been ‘particularly unfortunate’ given that in any case the trial had only been likely to last one more day.

He said: ‘The active case management of the sort which the judge adopted in this case would, in some circumstances, be appropriate: if a judge forms the clear and correct view that a claimant has not proved her case on her evidence, then it can save money and court time if he encourages the defendant to call no evidence.

‘But it is a high-risk course to take, as the history of this case shows, and it should only be adopted in a very clear case.

‘The judge thought that this case was very clear, and he explained why in a well expressed judgment. However, for the reasons given in this judgment, I think that he was mistaken.’

It will take a very brave trial judge to take similar action in future. After all, however ‘clear and correct’ they may believe their decision to cut short a case, there is no guarantee that the Lords Justice of Appeal will see it in the same light.

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