Disclaimer: I understand that, when making generalisations (especially in a short letter) it is easy to cause offence. If what I write does not apply to you, then please do not write to tell me as I know already.
I am not sure that I can sympathise with solicitors who supported the introduction of the Woolf reforms and now complain about the inevitable consequences. We pulled out of civil litigation at about the time when the changes were introduced, because we realised that it was no longer a field for a smaller or non-specialist firm. The reforms were flawed because:
- Most judges have no management experience or qualification and are the last people to entrust with case management.
- Judges preside over a bureaucracy which can best be described as flaky. They see nothing hypocritical in imposing on litigants standards which the courts themselves cannot match.
- The volume of potentially unnecessary paperwork (as well as excessive costs) is exacerbated by procedural front-loading. Cost-capping (itself a catch-22) would have to follow.
- The cost per case to the legal aid budget would rise exponentially, leading to an increase in the number of litigants in person who would expect free assistance either from the court or from the other side’s representatives.
- The rules had too many built-in judicial discretions – thus magnifying the problem of second guessing what a particular judge may consider reasonable.
- There would be an increasing and dangerous assumption that the judges alone know all the law. Previously, in most cases, there was just a one in three chance that the judge knew the law better than the advocates. His task was to choose between the two.
- Pre-trial hearings before ‘judges’ would multiply in number and complexity. Our (much lamented) former district registrar was reputed to have the best garden in the district – he never sat after lunch!
- Lastly, why should it bother the court if a case takes its time or is adjourned indefinitely (provided the court has advance notice)? Adjournments suited everybody; many a poor case could (before large costs were incurred) be adjourned generally when neither party felt strong enough to apply to strike out or there was no costs benefit.
This is but one illustration of the harsh realities blowing through the legal market, particularly outside London. Unless a firm has a niche or is well adapted to prosper in the new environment, there can be only one message – get out.
CMF Langdon, Young, Coles & Langdon, Hastings, East Sussex