Striking a balance

There has no doubt always been a tension between the litigation solicitor's duty to his client and his overriding duty to the court and the proper administration of justice. Solicitors are well aware of it, clients for the most part less so. In the past that tension usually remained dormant until real issues of propriety arose.

A reflection on the tenth anniversary this month of the Woolf reforms is that over those years the scope for the two duties to conflict has grown considerably and now goes well beyond matters of pure professional conduct. The coming into force of the practice direction pre-action conduct on 6 April 2009 sharpens this reflection.

The practice direction ('PD') is what we are left with after the attempt to introduce a single pre-action protocol was given the thumbs-down in the consultation process. There has been debate as to whether the PD itself is necessary, but it is now applicable to virtually every type of case and there is an explicit expectation by the court (para.4.2) that the parties will comply with it.

Severe sanctions

Lest it be thought paranoid to suggest that this might be another stick with which to beat practitioners, I note that District Judge Robert Jordan commented in his assessment of the practice direction (See 'One for all', Solicitors Journal 24 February 2009) that 'sanctions are no doubt the principal concern of practitioners'. DJ Jordan drew comfort from the fact that the PD contains no reference to strike-out for non-compliance, but nevertheless the sanctions are potentially severe, including the order of a stay and costs penalties. As he says, the PD 'will focus attention on the need for compliance'.

It has become commonplace to suggest that one impact of the Woolf reforms has been to increase the front-loading of legal work and associated cost in pursuing litigation. The move led by the commercial court to reduce overall costs by identifying the issues at the outset of a case, while laudable, tends in the same direction. Now the PD has as its aim a similar focus.

The PD itself recognises the dangers attached to the process of compliance. Paragraph 6.2 explicitly states that the costs incurred in complying should be proportionate to the complexity of the matter and any money at stake. This may be less than consoling to those of us who deal with heavy commercial disputes. More significantly, para.6.2 also recognises the danger of getting drawn into elaborate diversionary exercises when it emphasises that 'the parties must not use this PD as a tactical device to secure an unfair advantage for one party or to generate unnecessary costs'.

Balancing act

So we must comply but not over-comply, while at the same time meeting our clients' own requirements to bring about a successful outcome to their dispute at minimum cost. The drafters of the PD may believe that these objectives will go hand in hand, but experience suggests that clients do not always see it that way.

Where most commercial clients and the PD would agree is that 'starting proceedings should usually be a step of last resort' (para.8.1). However, this does not mean that clients will invariably view ADR as a viable route to resolving their particular dispute, and the statement that 'the court may require evidence that the parties considered some form of ADR', may simply lead to more tactical manoeuvring to achieve the appearance of compliance.

I would not wish to suggest that there is little in the PD that is useful. The provisions applicable to business claimants seeking the recovery of a debt from an individual defendant (para.7.4 and Annex B) are particularly welcome and in general the PD may be of most benefit in assisting lay parties to understand the court's requirements. The express requirement in Annex A, para.2, that a claimant should, in his letter before claim, inform the defendant if he has entered into a funding arrangement, is also helpful in clarifying the position at the earliest possible stage.

One can nevertheless foresee that the need for compliance will in many cases aggravate the tension between wishing to fulfil the client's aims and doing what one's professional duty requires. This could be borne with greater equanimity if there were more confidence that it would actually lead to the more efficient resolution of disputes. The nagging feeling persists that litigation is regarded as socially undesirable behaviour '“ to be discouraged by all means available.