View from the bench | Counting the minutes and the pennies

The Law Society is promoting a campaign entitled ‘Ask a solicitor’. My interest in this campaign concerns civil and family litigation and I make no apologies for again riding my hobby horse along what is now a well trodden path. Put simply, I want all litigants, potential or actual, somehow to be drawn to a solicitor or other legal advisor in order that they may be professionally advised what the legal principles involved in their dispute are, what the documents they need to disclose are and what evidence may be required to promote their claim or defence. I support the Law Society’s campaign.

There is another aspect of litigation that all litigants, be they legally represented or self-represented, are going to have to pay more attention to and it is this aspect that I want to focus on in here.

You may have spotted that over recent years, the rules that govern civil and family proceedings have been supplemented by what HMCS, now Her Majesties Courts and Tribunals Service (HMCTS) historically called targets. All claims allocated to the small-claims track, the fast track and the multi-track in civil proceedings and public law cases in Children Act proceedings had, internally, a target date by which the case, in the ordinary course of events, should be concluded. Judges are encouraged to set timetables in their case management functions that will enable the case to be concluded within the target date. It is no big deal, because in the ordinary course of events, the required timetables are reasonable and manageable. Curiously, some matters have never been subject to target completion dates (for example, ancillary relief, now financial remedy, applications). Nevertheless, case management directions will always have in mind an appropriate timetable so that there will be no unnecessary delays.

Sometimes, the timetable does not go according to plan. There are a variety of reasons for this, and often the reasons are beyond the control of the parties or their solicitors. This is fully understood by district judges when they are asked to vary the timetable to enable certain directions to have an extended time for compliance.

Jackson reforms

What then is the problem? The view has long been held that public law Children Act cases take far too long and successive presidents of the Family Division have endeavoured to address the length of time it takes to decide whether a child should be made the subject of a care or adoption order.

Significant improvements have been achieved in recent years but further improvements are sought by Mr Justice Ryder in his proposals for the implementation of the recommendations in the Family Justice Review report. The difficulties in reducing the length of the timetable are not underestimated.

There are often several different organ-isations involved in the process, just one of which is of course the legal profession. The same problem of the time a case takes from start to finish applies equally to civil proceedings and as we all by now know, this has been recognised by Lord Justice Jackson in his review of civil litigation costs.

The reforms that are now proposed, and are in the course of implementation, address not only the costs of civil litigation but delays in the process. The theory is that if the causes of delays are addressed, then costs will be reduced.

Since April 1999 the Civil Procedure Rules have provided the tools with which District Judges manage cases. Often, in past years, District and Circuit Judges have made what might be described as robust decisions with a view to keeping a timetable on track only to be reversed in the appellate courts.

However, in more recent times, Lord Justice Jackson and his fellow appellate judges have made it clear that Robust case management decisions that are reasonable in all the circumstances and prevent unnecessary and undesirable delay will be upheld

Cost consequences

The reforms envisage that, in managing a case, the judge will be looking at the costs consequences of case management decisions. Costs estimates or budgets are going to feature much more than in past years in discussions about how a claim is going to be managed and timetabled. Details of the new rules to which we shall all be working after April next year are still being completed, but there is little doubt that the application of these new rules may appear somewhat austere for those litigants, as I said earlier, be they represented or not, who do not keep on top of their case and comply with the directions.

The wise course of action will still be, as it has always been, to consider carefully the directions that come from the court without a hearing and to apply straightaway for a variation if it seems to be the case that the timetable is too optimistic. The same wisdom should apply when something does not go according to plan (a simple and obvious example is where a claimant in a personal injury claim does not recover within the prognosis period), so that a matter will not be ready for the timetabled final hearing/trial.

I foresee rewards for the litigant who keeps on top of the litigation, be it civil or family, and a rocky future for those who don’t.