Our Court System – What Needs To Be Done?

It is widely acknowledged within the legal profession that the present state of the administration and operation of the English (and Welsh) court system leaves a great deal to be desired. Telephone calls to certain courts are sometimes met with the telephone being picked up by the receiving court and then immediately put down.

Courts routinely lose papers or bundles lodged for hearings; this causes inevitable delay and wasted cost. Notwithstanding the often poor services supplied, the fees for initiating proceedings in the courts have rocketed in recent months, presumably with the intention to choke off the demand to issue proceedings and deter would-be litigants from using the courts to resolve their claims.

The extent of these fee increases is a disgrace since it encourages the dishonest and unscrupulous to hold back from paying for services or goods supplied in the knowledge that the unpaid supplier may face difficulty in paying the fee to start the proceedings to get the debt paid. The latest increase in the limit below which no winding up or bankruptcy proceedings can be brought against companies or individuals has the same chilling effect. The limit now is increased from £750 to £5,000. Throw in the fact that for small claims – up to £10,000 – no costs are recoverable and one must expect that a great deal of legitimate claims for so-called “modest” sums will be abandoned. Dishonest recipients of unpaid-for goods and services will get away with non-payment.

Prior to the increase in fees, the cost of issuing a claim at court, for £100,000 was £910. It is now £5,000, payable on the issue of the claim. This increase in fees should be reversed. If the government wishes to adopt a ‘pay for what you use’ service, the increase in fees should be applied at the end of the litigation process, not the beginning. Most court claims settle before trial.

Technology: Lawyers and courts are not well known for adapting quickly to technological change. This is a situation which must be changed. In Singapore, all court documents must be filed electronically. This applies also to the delivery of court documents to the opponent, and all fees have to be paid electronically. Sir Vivian Ramsey, now a Judge with the Singapore International Commercial Court, advises that unrepresented litigants in Singapore can attend a desk where their court documents can be issued and filed and the fees paid electronically. Although there are certain projects in England to adopt such procedures, these apply to specialist courts in the High Court in London and we are woefully behind Singapore in the introduction of this approach.

Mediation: It issaid that mediation is becoming more popular in England and Wales. In fact, it has not taken off in England and Wales in the way that many would wish. The answer is to make mediation mandatory (or very nearly mandatory) at or prior to the beginning of the court process. There could be a financial incentive to litigants to mediate linked to the level of the fee to be paid at the commencement of the proceedings. There could be a discount on the fees for parties that have attempted mediation and failed prior to the issue of proceedings (this would suggest that the parties have at least cooperated to a certain extent to try to resolve their dispute).

Alternatively, if one party has offered mediation to the other prior to the issue of proceedings, and that other party has refused to mediate, there could be financial penalties on that party, regardless of whether it wins or loses at trial. For example, the party refusing to mediate might be ordered, on losing the case at trial, to pay the court fee paid on issue of the claim by the successful claimant but multiplied by, say, three. Alternatively, the multiple could be adjusted according to the value of the claim. In other words, recalcitrant defendants, of whom there are many, would be forced to consider carefully whether they could simply adopt a “delay, delay, delay” approach.

The adversarial system: The English court system plays into the hands of defendants. Solicitors and barristers with a weak judge can waste a lot of time and money (their clients’ money) arguing cases in the courts. Judges, at all levels of the judiciary, must become more inquisitorial. Although judges are meant to identify at an early stage what the issues in the case are and impose time limits relevant to those issues for the carrying out of the necessary stages of the litigation, many do not. Advocates should have imposed on them time limits at hearings. It should no longer be the case that eminent QCs can spend days (or even weeks!) opening and explaining cases to the judge sitting at the trial. This might be acceptable in arbitration where the parties are paying (not the tax payer), and in such circumstances the lawyers can take as long as they like to spend their clients’ money. Where the taxpayer is paying, there must be limits.

Disclosure of documents: Historically, disclosure has been one of the biggest sources of delay and expense to parties engaged in litigation. Years ago, the famous ‘Peruvian Guano’ test was applied to matters of disclosure. The parties were obliged to disclose to each other all the documents they had in their possession, custody or power which were, or might be, relevant to the issues in the dispute. The default option now should be that the parties put forward, with their statements of case, all the documents on which they rely to support their cases. In other words, there will be no separate disclosure stage except where there are allegations of dishonesty or fraud or where a party can satisfy a judge that there are circumstances where a wider disclosure obligation should be imposed (e.g. there is reason to believe that the defendant (as it is most likely to be) has documents in its possession which are relevant to the issues in the case and which it should disclose to the claimant). If a defendant company contends that it has no such documents, a director of the defendant must swear an affidavit to this effect and, of course, the director would face charges of contempt and/or perjury in the event that it was shown subsequently that the affidavit was in fact untrue.

The situation in the English courts at the present time is unsatisfactory. Andrew Mitchell MP, following the loss of his recent High Court proceedings, has written that he presently owes a very substantial sum of money as a consequence. He has said that ‘justice’ in England and Wales exists only for the very rich, the very poor or the very foolish. He is right. This is a situation that cannot be allowed to continue.