The battle of the chancellors

The UK has a new economic approach: we are trying not to run a deficit. Government spending on the justice system, and supporting litigants is being cut back. Legal aid is gone.

But our citizens are still involved in car accidents. They get divorced. Landlords evict tenants. Artists’ copyrights are infringed. Goods sold turn out to be defective. Invoices go unpaid. With less financial assistance available, small businesses and individuals must increasingly present their cases themselves.

Unfortunately, our rules of procedure are just not suited for that. Few litigants in person that I ask have even heard of the Civil Procedure Rules. Those who are aware of them cannot find their way around them.

In the last 15 years, we have collectively undone most of the good that Lord Woolf set out to do. Each court and each type of case has evolved its own specialist procedures. The intentions behind each change were good: the rules of the IPEC, for example, are undoubtedly a great improvement for intellectual property cases. The procedural rules for low speed road traffic accidents are well adapted for resolving those types of disputes. The rules for housing cases, medical negligence, Chancery cases, Family cases, the Commercial Court and the TCC have all evolved with the best of intentions to assist cases in those courts. But the rules are all different.

The result is that the English civil procedure rules alone, when printed out, are thicker than the entire laws of Finland. Add the family procedure rules and the county court rules and you have a pile so high you can use it as a stool. Even experienced lawyers fall foul of the different rules when they move to a different court, or a different type of case within the same court. We have tailored our procedural rules to suit lawyers who do the same sorts of cases day in day out, rather than the unfortunate citizen who may bring a personal injury claim one year and a copyright claim the next.

The Jackson reforms have added new traps for the unwary court user. Under the “Singapore” approach being pushed on our judges, any litigant who puts a foot wrong in this hugely complex web of procedural rules is faced with very serious sanction. Judges manage their cases accordingly, using procedural reasons to dispose of cases rather than working with the parties to resolve the real dispute between them. In many cases more words are written and argument expended about which side breached a procedural rule than about the underlying dispute that caused the litigation in the first place.

When deciding between a defendant who has wilfully harmed someone, and a claimant who has failed to fill in his directions questionnaire, our courts today would decide in favour of the defendant. That is bureaucracy, not justice. At the time when our Chancellor of the Exchequer would like English men and women to be able to use the courts without expensive expert legal assistance, our Lord Chancellor is making it increasingly risky for anyone to attempt this.

Costs awards add complexity. Few practitioners understand the rules and we have a profession of costs draughtsmen who have evolved to manage that. Resolving costs proceedings, ironically, may cost as much as the underlying claim. The threat of costs makes bringing any claim a risky proposition: if an artist finds his painting is being copied, and the other side “lawyers-up”, the artist may find himself exposed to the risk of a costs award many times higher than the value of the claim he was bringing. He doesn’t dare seek redress.

In contrast to our approach, proceedings in Germany seem to be characterised by a complete lack of procedural gamesmanship. The timetable for exchange of briefs and trial is set by the court at the outset. The procedure is the same for all civil cases. If a party does make an interim application, it would be heard at the trial (if it is still relevant by that stage), but in the meantime the parties keep pushing ahead.

At trial the judges have all read in and discussed the case. They proactively tell the parties which points they need to address and which points are already clear, so even complex trials last hours, not days. If something needs further evidence the judge will give directions and schedule another hearing. In the 50 or so German trials I have attended, I have never seen a case dismissed or a party penalised for a procedural error: all rulings have been made on the merits. And although costs are awarded against the loser, there is none of the massive complexity of our own costs rules and assessment procedures. Costs are capped at a fraction of the value in dispute. A party bringing a claim knows exactly what his risk is.

If we want to cut legal spending, we need to make our lower courts accessible to the public without legal advisers. We should simplify and unify our court procedure as far as possible: if it needs anything more than a thin pamphlet to set out the rules, they are too complex. We should ask our judges to become more inquisitorial, emphasising that their role is to resolve their dispute between the parties, rather than dispose of cases on procedural grounds. We should tear up our costs rules, and limit recoverable costs to a fraction of the amount in dispute.

Richard Vary, head of litigation, Nokia