Tuesday 29 March 2011

Will Civil Justice ever be the same again?

  • Good bye success fee recoverability, will now be paid for by Claimants. 
  • Hello contingency fees with an increase of 10% in general damages to fund them.
  • Good bye PI Claimants having to pay a successful defendant's costs and therefore good bye to ATE insurance and premiums.

  • Hello to an increase in the costs which can be recovered by Litigants in Person [long overdue!]
  • Good bye (probably) to the £5,000 small claim limit - which dramatically could be increased to £15,000? So very limited costs recovery in all cases up to £15,000 (so no recoverable expert evidence costs in those cases? Will not apply to PI and housing disrepair) [Bit uneasy about this - £15,000 seems a bit high for informal justice in the hands of a deputy district judge in a busy back to back list]
  • Hello to a new High Court lower limit of £100,000 [High Court is already short of work - but then it seems that High Court judges are going to sit in the county court to take up the slack? See below]
  • Hello to a new Chancery county court upper limit of £350,000 [This is very very long overdue - there is a comedy limit of £30,000 at present]
  • Good bye to the local county court -  a national county court, merged with Tribunals?  [Shame, but understandable]
  • Hello to more High Court Judges sitting in the County Court.[Presumably because the new limit will mean even less work for them? See above]
  • Hello to more enforced mediation [bad idea - see here]
  • Good bye to face to face small claims hearings - more paper and telephone hearings [I shudder at this, too Continental for my tastes]

Monday 28 March 2011

Should expert witnesses be immune from suit?

I don't think so - they do their work for reward and if they fail in their duties of reasonable care (primarily to the Court and secondarily to their instructing party (ies)) then they should pay for the consequences accordingly.  Any fear which might put them off coming forward is countered by the fear which makes sure they do their best and comply with their duties.  There was an interesting discussion of this when the Court of Appeal ruled that expert witnesses have no immunity from disciplinary action  - see General Medical Council and Professor Sir Roy Meadow - the Supreme Court are set to answer the immunity from civil suit point on Wednesday (Jones v Kaney)....what this space...

Wednesday 16 March 2011


Another attempt to explain and rationalise the law of causation has been made by the Supreme Court.  Sienkiewicz v Greif.  I agree with Lady Hale:  I pity the practitioners as well as the academics who have to make sense of our judgments in difficult cases.

I utterly applaud this further nail in the coffin of those trying to defend mesothelioma actions and hopefully they will now take Lord Brown's hint:

mesothelioma claims must now be considered from the defendant's standpoint a lost cause

There was also some interesting comment about how judges, sometimes, just have decide questions of fact, in very difficult circumstances and must just do their best, and find certainty in the swamp of scientific uncertainty.  Sometimes they need to put their finger in the air, look to their consciences and just decide: (Lady Hale)

But as a fact finder, how can one ignore these statistical associations? Fact-finding judges are told that they must judge a conflict of oral evidence against "the overall probabilities" coupled with the objective facts and contemporaneous documentation: see, for example, Robert Goff LJ in Armagas Ltd v Mundogas SA (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, 57. Millions of pounds may depend upon their decision. Yet judges do not define what they mean by "the overall probabilities" other than their own particular hunches about human behaviour. Surely statistical associations are at least as valuable as hunches about human behaviour, especially when the judges are so unrepresentative of the population that their hunches may well be unreliable? Why should what a (always middle-aged and usually middle class and male) judge thinks probable in any given situation be thought more helpful than well-researched statistical associations in deciding where the overall probabilities lie? As it seems to me, both have a place. Finding facts is a difficult and under-studied exercise. But I would guess that it is not conducted on wholly scientific lines. Most judges will put everything into the mix before deciding which account is more likely than not. As long as they correctly direct themselves that statistical probabilities do not prove a case, any more than their own views about the overall probabilities will do so, their findings will be safe.

Wednesday 9 March 2011

Judge Sues Newspaper for Defamation

I find the idea that a Judge can sue for defamation in respect of a matter arising out of his office, to be very odd indeed (see here).  Judges are properly immune from suit from such actions, and it would seem to me that they should not use a tort that cannot be used against them.  If a newspaper defames a judge, then he should take it on the chin, it is part of being in the public eye -it is part of properly being subject to public scrutiny - if the defamation is credible, then the OJC will investigate and the judge can respond through the proper process and a successful outcome for the judge - the judge being cleared - will be announced publicly - I am not sure what more defamation proceedings can achieve - save for money?  I can see how in an extreme case, an injunction might be necessary to protect the judge, but that would surely be on extreme facts, probably also amounting to contempt of court actionable and restrainable at the suit of the Attorney General.    I am just not sure a judge should take matters into his own hands and sue at private law for his own benefit?  Perhaps the LCJ will issue guidance.

Thursday 3 March 2011


You may recall the Trafigura case.  Allegations were made of exporting oil waste to Ivory Coast and causing personal injury to the local population.  Leigh Day Solicitors sued on behalf of 29,614 claimants and Trafigura settled for £30M.  MPs complained they were being gagged by the High Court etc.

Leigh Day then put in a costs bill - £104,707,772.72.  That figure includes success fees for both solicitors and counsel of 100%, and an ATE premium of £9 million.  Wow.  Trafigura itself had spent a mere £14M.

The costs bill, surprisingly is being contested and the Senior Costs Judge has been answering some preliminary questions such as -  

 Do the Claimants' costs have the appearance of being disproportionate?

He has answered that one - Yes

We await a further assessment to see how much will be shaved off this historic and extradordinary bill?

Putting in a bill which is 3 1/2 times bigger than the sum recovered just about tells you all you need to know about success fees and ATE.  And tells you why Jackson LJ is right.  Roll on his reforms....

Comment in the Lawyer Magazine here.