Rachel Rothwell's blogs

Judicial tension over costs budgeting

Rachel Rothwell

Monday, 13 May 2013

The final report on the costs budgeting pilot, which was published last week, gives an interesting insight into a battle going on within the judiciary. As is known, the Commercial Court managed to win itself an exemption from costs budgeting some time ago by convincing Lord Justice Jackson that, in the high-value commercial cases dealt with in the CC, such measures were unnecessary. Jackson accepted this in his 2009 reform proposals. At the Bar Council’s annual conference last year, the CC’s Mrs Justice Gloster described this in terms of having ‘won the battle’ on costs budgeting.

Then in February this year, shortly before costs budgeting came in across the board on 1 April, another carve-out was granted, for those courts dealing with similar high-value claims to the CC, which feared ‘forum shopping’ problems if they were subject to costs budgeting while the CC was not. So cases worth more than £2m in the Chancery Division, Technology and Construction, and the Mercantile Courts were also exempted.

This exemption will be reviewed in July, however, and is by no means certain to stay in place. As reported in last month’s Litigation Funding, Mr Justice Ramsay – the judge in charge of implementing Jackson – recently said that his own view was that such exemptions should not exist.

Now, the final report on a costs management pilot which has been running in the TCC and Mercantile Court since October 2011, co-authored by a monitoring group of three lawyers (Nicholas Gould, Christina Lockwood and Claire King), sheds some light on what other judges think of the exemptions from costs budgeting; and it seems the judiciary is not too impressed.

Telephone interviews with judges conducted for the report showed that ‘many judges shared the feeling that there is no principle for the exemption of the Commercial Court, and they find this very unsatisfactory’.

One specialist mercantile judge interviewed said he firmly believed that costs management should be ‘across the board’, adding that ‘no rationale’ had been given for the CC’s exemption, and describing the further exemptions announced in February as ‘illogical’. The report continues: ‘The cynical view is that there are so many foreign litigants in the Commercial Court (Berezovsky v Abramovich etc.), that the decision had been made to allow [litigators] to continue earning very high fees in the Commercial Court. Consequently big firms might choose to start proceedings in the Commercial Court for a “free for all”, instead of using courts of choice such as the Mercantile Courts in Bristol or Birmingham.

‘Why should a mercantile judge be forced to tell Barclays Bank and HSBC that they cannot spend more than X on their expensive City firm of solicitors, when the Commercial Court is free from this obligation? Judges clearly resent that no guidance was given on this.’

Clearly the senior judiciary now finds itself under pressure from those in the lower ranks to remove the costs budgeting exemptions. But if you believe the ‘cynical’ view outlined above, that could have a negative impact on the profitability of City firms.

In his reform proposals, Jackson said that the large commercial businesses that litigate in the Commercial Court had informed him that they were ‘unconcerned’ about the level of legal costs. But it could be that attitudes on this differ according to whether a company is bringing a claim, or forced to defend one. It seems to me that, before any final decision is made on the exemptions, there must be some proper investigation into whether the clients in these high-value cases actually want their legal costs to be subject to the rigours of costs budgeting, or not.

Only when that is known can a decision be made.

Rachel Rothwell is editor of Litigation Funding magazine, providing in-depth coverage on costs and the financing of litigation.

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A blow to EL claims

Rachel Rothwell

Monday, 29 April 2013

Last week, an attempt to oppose changes to health and safety law that will make it harder for employees to bring claims against their employers, failed in the House of Lords.

At the Association of Personal Injury Lawyers’ annual conference this month, APIL past-president David Bott described the changes in the Enterprise and Regulatory Reform Act as ‘the latest unconscionable thing’ that the government has done; and said the move harked back to Victorian times.

The reform will mean that, for some health and safety rules, employees will no longer be able to rely on the fact that the rule itself was breached in order to bring a claim for injury; instead, they will have to prove that the employer was actually negligent. What’s wrong with that, you may think. Employers will only be held to account where they are shown to have behaved negligently, and that is fair.

But you have to look at how these claims work in practice – and why the current rule was introduced in the first place. The big difficulty with employment claims is that the employer holds all the information; claimant lawyers find it difficult enough to prise the relevant documents and evidence from employers and their insurers, even now. What’s more, the witness evidence of other employees might be a crucial factor in proving negligence, but how can you expect employees to give evidence against the firm they work for? The current rule was intended to redress this imbalance.

What is the agenda for this change? It is another plank in the government’s bid to combat the ‘compensation culture’ – a concept that has been acknowledged as nothing more than a perception by various government advisers, judges and others. Figures from the Health and Safety Executive show that numbers of work-based claims are actually falling, as business gradually improves its health and safety record.

But unfortunately ‘‘elf and safety’ does not enjoy a good reputation with the public; it is seen as the killjoy law, preventing people from doing anything fun - banning yo-yos in schools - although in many cases ‘the rules’ have simply been misinterpreted or indeed made up.

In truth, health and safety law has done a huge amount to create a safer environment for British workers but there is a risk that the reforms will see H&S slip down the agenda for businesses looking to save money in the current economic environment. The removal of strict liability coincides with a new protocol and portal for EL claims worth up to £25,000, and new fixed fees, all coming into force in July. Lawyers will now need to produce more evidence to support EL claims, for a tight fee. Claimant lawyers already predict that many claims will fall out of the EL protocol, which is only suitable where liability is admitted. The removal of strict liability will exacerbate this even further. The EL protocol could end up a considerable waste of time and money.

The real winners here will be employers’ liability insurers, who can look forward to paying out on fewer EL claims. But the extent to which they will pass those savings on to British business through lower premiums remains to be seen.

Rachel Rothwell is editor of Litigation Funding magazine, providing in-depth coverage on costs and the financing of litigation.

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Rise in small-claims limit may be good for litigants

Rachel Rothwell

Friday, 12 April 2013

When it comes to the small-claims court, all the focus seems to have been on personal injury.

There has been a lot of attention on the looming threat of a rise in the small-claims track limit for PI, currently being mulled over by government. The PI small-claims limit is £1,000 at the moment – but most commentators expect the justice secretary to bump this up to £5,000. The big point about the small-claims track, of course, is that there are no recoverable costs – so the rise risks leaving many unrepresented injured people to deal directly with defendant insurers, without having any idea of the real value of their claim.

But what about non-PI claims? Here, the small-claims limit doubled from £5,000 to £10,000 this month, and the profession does not seem to have made much of a fuss about it. Is it bad news for lawyers – and what about for litigating parties?

For those who have a very clear-cut claim, where they have good evidence that they have suffered loss as a result of a breach of contract or negligence on the part of a professional, the fact that their £9,500 claim will now fall within the small-claims limit may be unfair. Whereas previously they could have recouped their legal costs when they won, now they cannot.

But how many claims ever fall into that category? Is there really any such thing as a surefire claim? More likely, a litigant may have a very strong claim that they feel they really should win, provided that the judge on the day adopts a sensible approach. But you can never be sure – because unfortunately, that is the nature of litigation – and the opposing party may be feeling equally confident.

For the average person with a relatively small-scale dispute to litigate, their biggest concern is not the amount they might have to spend on their own lawyers. It is the prospect of paying the other side’s costs if they lose – costs over which they have no control at all, and cannot simply pull the plug on – that really scares them. And in a very many cases, it will put them off litigating altogether, and they will never enforce their rights as a result.

I have a friend who has been let down very badly by her builders. They botched the job to such an extent that she eventually had to hire another building firm to put things right. She has paid the original builders a reasonable sum for the aspects of the work that did not need to be re-done; but they continue to press her for the full cost of the job, despite their obvious negligence. It is a very large and well-resourced firm.

Because of the amounts involved, her dispute will fall within the small-claims track under the new limit - something she is relieved about. Rather than caving in, she is more than prepared to fight her corner in that court, and instruct her own lawyers if she needs to. But had she been at risk of her opponent’s legal costs, that would have involved a far greater risk, and one she probably wouldn’t have wanted to take. As lawyers know only too well, adverse costs can be a very powerful bullying tool – although it will be interesting to see what effect the new rule requiring costs to be ‘proportionate’ to the amounts at stake will have outside the small-claims track.

So while litigants will not now be able to recoup their legal costs for disputes under £10,000 allocated to the small-claims track, it may just be that we will actually see more cases being brought, and more wrongs being righted, as a result of the new limit. If that is the case, there could be an opportunity for solicitors to offer a supporting role, even if it falls short of full representation.

Rachel Rothwell is editor of Litigation Funding magazine, providing in-depth coverage on costs and the financing of litigation.

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Firms are getting cold feet over DBAs

Rachel Rothwell

Tuesday, 26 March 2013

A couple of weeks ago I went along to an excellent debate on damages-based agreements chaired by Michael Napier QC, and hosted by Harbour Litigation Funding and Expedite Resolution.

One of the main points that came across was the extent to which the shoddy drafting of the DBA Regulations is deterring firms from wanting to try them (see April’s Litigation Funding magazine for more detail).

Harbour’s Susan Dunn recounted that initially she had seen considerable interest in DBAs from the types of firms that are already big players in the CFA world. But since the regulations came out, there is so much ambiguity over what is and is not allowed, that firms just don’t want to take the risk. This was confirmed to me after the panel discussion by a second funder who had also seen firms getting cold feet over the DBA Regulations.

So it was encouraging last week to see an email pinging through from Lewis Silkin, announcing that it is launching a new ‘product’ specifically geared towards the new alternative funding arrangements.

In partnership with broker TheJudge, Lewis Silkin has established a ‘panel’ of third-party funders and after-the-event insurers (including Elite Insurance and funders Vannin and Therium) to fast-track the funding/insurance process for clients and, it claims, provide quotes or proposals within five working days.

The panel is expected to be particularly useful for trusts disputes, investment disputes and professional negligence claims. Lewis Silkin litigation partner Tamar Halevy predicts that DBAs will ‘dramatically’ alter the marketplace for litigation funding. But whether or not that transpires will depend on the attitude other firms take to the DBAs.

Also at the debate this month, Mr Justice Ramsey asserted that the judiciary and the profession are all ‘ready’ for implementation of the Jackson reforms on 1 April. When I put that comment out on Twitter it met with a barrage of derision from lawyers – so I think it’s fair to say that much of the profession would disagree with him on that one.

Referring to the deluge of cases that lawyers have been signing up for ATE insurance ahead of the deadline, Ramsay also predicted that the courts will still be seeing some cases operating under the old rules for the next year. So recoverability may not be dead just yet.

Rachel Rothwell is editor of Litigation Funding magazine, providing in-depth coverage on costs and the financing of litigation.

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ATE insurers are gearing up for 1 April

Rachel Rothwell

Monday, 11 March 2013

If you are an after-the-event insurer, you are probably rather busy right now.

Solicitors are (metaphorically speaking) queuing outside your front door, down the street, round the corner, and in some cases halfway down the M4 to sign their clients up to policies before 1 April (‘J-Day’).

That, of course, is the day from which clients will no longer be able to recover their ATE premium from the other side when they win, and will instead have to pay for it from their own pockets (or their damages).

Rocco Pirozzolo of QBE, which underwrites mainly commercial litigation, tells me that demand from solicitors has been soaring since the start of the year – while in the personal injury space, people at ARAG tell me they are so busy that they will be staying open all over Easter (the reforms come in right on the back of the Easter bank holiday – great planning as usual).

But that is not the only reason why ATE insurers aren’t taking much leave right now. They also need to work out how on earth they are going to adapt – and price – their products for the uncertain post-Jackson world.

In personal injury, of course, we are about to see the introduction of qualified one-way costs-shifting (QOCS). One of Jackson’s main aims for QOCS was that it would do away with the need for ATE altogether.

But fortunately for the insurers, the actual implementation of QOCS (the rules surrounding part 36 offers, the unexpected and unexplained introduction of terms such as ‘fundamentally dishonest’ instead of ‘fraud’ in the last few weeks) seems to have created enough uncertainty to convince cautious lawyers that ATE may still be needed.

I somehow doubt that was the government’s intention.

With ATE paid for by clients post-Jackson, the cost of premiums should come down, as clients and their legal advisers become much more price sensitive. ATE insurers are now busily working out their new models, and I would expect the new products to be stripping out any bells and whistles that they can, and bringing the cost down as low as it can go while still providing meaningful cover.

ATE insurers are currently providing details of their new products for the April edition of Litigation Funding magazine’s regular table of ATE insurance.

That table, which provides a straightforward way of seeing and comparing the range of ATE products on the market, has been published in the magazine for more than a decade. But from 1 April, it will become a tool that lawyers will not want to be without.

Rachel Rothwell is editor of Litigation Funding magazine, providing in-depth coverage on costs and the financing of litigation.

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Judges begin flexing their Jackson muscles

Rachel Rothwell

Monday, 25 February 2013

What with judges’ general dislike of all things costs related, and the latest announcement from the senior judiciary that new costs budgeting rules will not normally apply to disputes of a commercial nature over £2m, one could be forgiven for thinking that our friends on the bench are really not that up for this Jackson malarkey.

They want to be deciding on points of law, not worrying about managing cases or keeping a lid on costs.

So it was actually quite heartening this week to get sight of a note being sent to lawyers in the Manchester area by Judge Stephen Stewart QC, designated civil judge, Greater Manchester. And he is clearly keen to start flexing his new Jackson-powered muscles. Stewart brings to lawyers’ attention ‘two points of major importance which come into force on 1 April’.

The first is that ‘Not only has Rule 3.9 been amended, so has the Overriding Objective. Both now emphasise the importance of complying with Court Orders, the Civil Procedure Rules and Practice Directions’.

Stewart then goes on to quote from one of Lord Justice Jackson’s implementation lectures, ‘Achieving a change of culture in case management’. In the speech, Jackson outlines the Singapore experience, whereby a system of robust case management was very strictly enforced.

Some choice extracts quoted by Judge Stewart include: ‘The effect of the new approach to case management was electric. In the early period there was much discontent within the profession. However, once parties had adapted to the new regime, it was generally recognised that the long-term effect of these reforms was highly beneficial. The work of the profession increased.’

And: ‘I hope that a similar change of culture can be achieved in England when the Costs Review reforms are introduced. It would be an added benefit if… there is a culture change that does not take the profession by surprise and gathers widespread support. Hopefully there will be fewer casualties of the process than there were in Singapore.’

In the second of his two points, Stewart then refers to the senior judiciary’s recent announcement on costs budgeting. He draws particular attention to the statement: ‘Subject to the limited exceptions which will be dealt with in the direction, it is envisaged that costs management orders would be made in all cases except where there is good reason not to do so.’

At least one judge, then, seems ready to embrace his duties in the new era. Let’s hope his colleagues in the wider judiciary feel the same.

Rachel Rothwell is editor of Litigation Funding magazine, providing in-depth coverage on costs and the financing of litigation.

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Assessing costs: a nasty shock

Rachel Rothwell

Tuesday, 12 February 2013

With the Court of Appeal’s recent judgment in Henry, much attention has focused on the new costs budgeting rules coming in this April as part of the Jackson reforms. But there is another change on its way that will also affect lawyers and costs professionals quite significantly – and its impact has just been ramped up by a factor of three.

From April, the ‘provisional assessment’ (PA) process that has been piloted in selected courts in the north-east will be implemented nationally. The scheme is designed to cut down on the expense of dealing with legal costs by ensuring that bills below a certain threshold (£25,000 in the pilot scheme) are assessed on paper in the first instance. If a party wants to dispute the court’s provisional assessment, it can request an oral hearing to appeal it - but if it is not then awarded an increase of at least 20% on the costs it was allowed under the PA, it will have to pay the costs of the oral hearing.

There have been mixed reviews from practitioners on the ground who have been through the PA pilot process, with some questioning the fairness of outcomes under it. But the powers that be have considered it successful enough to be rolled out nationally; and lawyers have been given plenty of notice that it is coming. What has only recently come to light, however, is that when the scheme is extended across the country in April, there will be a huge jump in the threshold of bills to which it will apply – from a maximum bill value of £25,000 in the pilot scheme, up to a whopping £75,000.

The first I heard about this was when it was mentioned a few weeks ago by costs master Haworth of the Senior Courts Costs Office, at IBC Legal’s Solicitor’s Costs Conference (I’ve written a report of the conference in February’s edition of Litigation Funding). Haworth mentioned that the reason for the threshold being ‘jacked up’ to £75,000 was unknown to him, and he questioned whether, with the inevitable increase in workload it would entail, the SCCO would still be able to meet its target of dealing with PAs within six weeks.

Should lawyers be concerned about this change? If they care about recovering the full extent of their costs, then yes. The rise in the threshold means there is suddenly quite a lot more at stake under PA. As costs expert Sue Nash at Litigation Costs Service pointed out to me recently, if you put in a bill for, say, £50,000, and the court provisionally assesses it at only £35,000, you have a difficult choice to make. You would need the bill to go up to £42,000 at oral hearing to avoid having to pay for the costs of that hearing. If you achieve only, say, a 10% increase, you could actually end up worse off.

Much will depend on whether judges are getting things right at the PA stage when the scheme goes national – but, as I’ve blogged before, not all judges appear to be terribly interested in costs.

It is worth noting that Jackson himself only ever recommended that PA should apply to bills up to £25,000. But if government did want to extend it, it could have started by implementing the national scheme on the same basis as the pilot – with the £25,000 threshold – but made it clear that, if PA proved to work well over a set timeline, then the threshold would rise to £75,000. That way judges would have the chance to get to grips with the scheme before it was extended, and lawyers would have fair warning of what was coming.

Wouldn’t that have been a more sensible approach?

Rachel Rothwell is editor of Litigation Funding magazine, providing in-depth coverage on costs and the financing of litigation.

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Costs budgeting: why judges need more training

Rachel Rothwell

Monday, 28 January 2013

Now that we are only two months from Jackson D-Day, solicitors are waking up to the prospect of costs budgeting.

Costs budgeting will require lawyers to think carefully about the likely costs of a trial at an early stage, submit budgets to the court for approval, and let the court know if the estimated costs change as the case progresses – or they will not be able to recover any increase on their original budget from the losing party. The rules will apply throughout the multi-track in the County Court and High Court.

Last summer, a judge’s decision in a defamation case which was part of a costs budgeting pilot sent shockwaves through the costs world. The winning claimants lost out on substantial fees because they had not complied with the costs budgeting requirements under the pilot. The appeal judgment on that decision was handed down today and will give further publicity to the impending costs budgeting rules.

But while the new regime will be a culture shock for solicitors, it will be just as much so for the judges; a fact acknowledged recently by Mr Justice Ramsay who is overseeing the reforms.

One might imagine that the judiciary would have received extensive training to support them in the transition to the new rules. But, in fact, they will only be given a single day’s training.

The Ministry of Justice tells me that ‘all salaried civil judges’ will receive a ‘special day’s training… [which] includes working on some detailed and difficult costs budgeting exercises’. The senior judiciary will be given a shorter session, while deputy district judges and other fee-paid civil judges will not attend any sessions. That is on the basis that fee-paid judges will not normally be hearing high-value multi-track claims – although practitioners tell me that, at the moment, it is not uncommon for deputy district judges to be listed for case management conferences in multi-track cases.

Those on the ground have doubts that one day’s training is really enough for judges to get to grips with such a fundamental change. Iain Stark, chair of the Association of Costs Lawyers, worries that in essence, judges will simply be learning as they go along, which does not bode well for consistency of approach. He also points out that the final rules on cost budgeting have not even been published yet. So what is the training being based on?

Another issue is the extent to which judges will be savvy about the kind of costs tactics that may be played out under the new rules. For example, for one financially strong party, there might be an advantage in putting in a very low costs budget, to make the opponents’ figure – where the lawyer might be acting under a no-win, no-fee arrangement – look expensive, and likely to be rejected by an inexperienced judge. That would put a lot of pressure on one of the parties, and we are likely to see an increase in these kinds of costs tactics.

Although there are concerns that costs budgeting will frontload expense, ultimately it is about making the cost of litigation clearer from the outset, and that is an obvious benefit to clients. But it seems a shame that a little more investment could not have been made in giving judges fuller support on how to make this work in practice. The reform itself might be sound, but – as with so much of the Jackson package – the way it is being implemented could have been done so much better.

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Putting it simply: a handbook for LIPs

Rachel Rothwell

Thursday, 17 January 2013

Last Friday, the judiciary published a special guide for ‘self-represented’ litigants to help them through the judicial process. It was a sign of the times if ever there was.

The guide relates only to applications to the Interim Applications Court of the Queen’s Bench Division; but I’m told there are already similar publications in the pipeline for other courts which also see large numbers of litigants in person. The Interim Applications Court typically deals with, for example, injunctions to stop confidential information from being disclosed, or to prevent someone from working for a rival employer or selling a property or assets.

The judiciary says that ‘a good number’ of parties on both sides of these injunctions are representing themselves, and it expects this to increase. The guide was written by Mr Justice Foskett, with help from Citizen’s Advice, and the Royal Courts of Justice’s personal support unit. So how good is it?

Overall, it does its task quite well; it is clearly written and direct, with plenty of very helpful information. It contains examples of a skeleton argument and witness statement that will be an invaluable resource for LIPs; exactly what they need.

It is also quite useful with regards to court etiquette. For example, it says: ‘You need not worry about the formalities. Lawyers will address the judge as “my lord” or “my lady” and if you can do so, all well and good. If you prefer “sir” or “madam”, that will be entirely acceptable. Provided you show courtesy and respect, the judge will not be troubled about the mode of address.’

Another good example: ‘You may find that the barrister or solicitor appearing for the other side in your case will come up to you and introduce themselves. That is perfectly normal. They will do so as a matter of courtesy and indeed professional obligation. They may wish to explain some aspect of what they propose to do or say at the hearing. This is not a matter that should cause you concern…

‘It is possible that you will be handed some new document (for example a witness statement) that you have not seen before. Accept it if it is offered to you and read it if there is time before the hearing commences. Do not worry that such a document has been given to you. The barrister/solicitor will be under an obligation to tell the judge that you have only been given the document shortly before the hearing. The judge will ensure that you are not disadvantaged by this.’

But while the guide tries very hard not to patronise, occasionally it does slip across that line, with advice like, ‘listen carefully and try to understand what is being said’. And although for the most part the guide is written in admirably plain language, it sometimes forgets itself, with phrases such as ‘sub-paragraphed propositions’ and ‘paginated bundle’ (although the latter is defined in a footnote).

The guide also highlights the help available from the personal support unit within the Royal Courts of Justice, in providing some limited office assistance and moral support to litigants in person. The only concern there is whether the unit will be given adequate resources to meet any increase in demand as its services become better publicised.

All in all, the guide is an excellent initiative, and one that should be made available in all courts where individuals will be increasingly obliged to represent themselves, due to legal aid cuts, civil justice reforms, or simply their own financial circumstances. The more that LIPs understand about legal procedure, and the importance of keeping their arguments relevant and concise, the better for all parties.

But it barely needs saying that a simple handbook is no substitute for the reassurance of having a lawyer at one’s side throughout a case.

Rachel Rothwell is editor of Litigation Funding magazine, providing in-depth coverage on costs and the financing of litigation.

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A view from the litigant in person

Rachel Rothwell

Wednesday, 2 January 2013

A few weeks ago, I got chatting to a woman in my local pub – let’s call her Susan – who is embroiled in a legal battle in the family courts. Having spent more than £50,000 in legal fees, she is now acting as a litigant in person, and her experience gives a glimpse of how family justice looks from this perspective.

The legal issue involves Susan’s young grandson; and of course, I only got to hear her side of the story. The boy’s father has recently served a prison sentence for extreme domestic violence against Susan’s daughter; he is also – she claims – a drug dealer. Despite driving a flashy motor, he is funded by legal aid, and the state also pays for his accommodation; something that irks Susan and her family considerably.

On behalf of her daughter, Susan is seeking to prevent the father from having contact with his child. She does not believe that contact with this man is in the child’s best interests, and she sees the father’s legal action as an attempt to continue to intimidate and upset her daughter, rather than a genuine desire to have a relationship with the child.

At the moment, the boy must be taken to a contact centre every week to meet with his father – which Susan does on behalf of her daughter, so that she does not have to encounter her former abuser. But the child often refuses to go in, kicking and screaming. Susan has been told by the judge that she will be held in contempt of court if she cannot get him in there.

The father is currently studying a law degree, and is clearly making a case that he has turned his life around since his conviction. But Susan believes he is now abusing his current partner and has resumed dealing drugs.

The battle over contact has been going on for some time, and the costs have racked up. Despite the domestic violence aspect, her daughter’s relatively low salary put her above the legal aid threshold, so Susan has funded the proceedings for her. She says she has been paying a barrister £500 an hour to act for her in court – but with so much waiting time, the last occasion that she used him cost her £2,000 to have the lawyer speak for 20 minutes; something that she understandably finds frustrating.

The phenomenal costs have now led Susan to ditch all legal representation and act for herself in court. She is a confident person, and knows the facts of the case inside out and backwards – better, she feels, than any legal adviser ever would - but of course she has little idea of court etiquette. When raising the issue of the father’s alleged drug dealing, for example, she says she had to learn that instead of accusing him outright, she had to first ask him whether he had ever taken drugs – which he hadn’t – and then ask about the presence of scales at his home when he was arrested.

Because of her ignorance of how the court works, Susan has felt herself ridiculed by barristers in the courtroom, and felt offended by some of their remarks. But she does seem to feel that she was dealt with respectfully by the judge, who took a reasonably firm hand with one of the offending barristers.

Where one of the other professionals involved failed to give a recommendation either way on contact, the judge told them to stop sitting on the fence, to leave the room and come back in with a definite answer either way. They returned and said ‘contact’. But Susan sees vested interests everywhere she looks within the system. She thinks the staff at the contact centre, for example, are bound to recommend continued contact because that is what they exist to provide; and she has similar doubts about the role of the child’s solicitor.

Susan notes that before she began acting for herself, the lawyers for all parties would go off into a separate area to discuss things without her presence. That doesn’t happen now she is representing herself, and she is suspicious of why it ever did.

Whatever the merits of this particular legal action – and whether or not it should ever have been fought – what it does show is that many of those using the family courts are under considerable financial pressure, and are disillusioned with the justice system and those who work within it.

The number of people who, like Susan, are compelled to represent themselves is already rapidly increasing. If they are not treated with due respect by the professionals they encounter during the proceedings, then they will lose their faith in the court process; and as they tell the wider community about the problems they have encountered, the overall credibility of the family justice system will be damaged.

Rachel Rothwell is editor of Litigation Funding magazine, providing in-depth coverage on costs and the financing of litigation.

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