Will Civil Justice ever be the same again?

Gosh - it has been a big day for civil justice - Jackson comes to fruition?

• 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.

[see here on the above]

• 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]

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...

JUDGES JUST DECIDE THINGS

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.

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.

Wow

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.

MEDIATION

Mediation cannot replace Court proceedings.  It remains the bizarre policy of those who allocate Judges to Courts, to force all civil practitioners to first sit trying crime.  In the case of a QC in my own Chambers, this involved him doing his first criminal case in 30 years in the Crown Court (trying it). On his first day of sitting at an East London Crown Court, as tradition requires, a senior member of his own Chambers and the most senior silk present that day at Court gave short speeches of introduction to the Bench.  The criminal silk had read the new judge's barrister CV and assured him that there would be no place for his special skills as a mediator at this particular Crown Court.  Sometimes mediation just does not and cannot help.  Sometimes the State and/or private parties come into such fierce and direct conflict that only a jury's and/or judge's, binding determination can bring an end to the dispute.  That is why we have courts and tribunals - to solve private disputes and to adjudicate between the State and the citizen.  Mediation involves neither adjudication nor determination - it requires the parties to find their own resolution - with meditative assistance from a qualified practitioner.  I have represented parties in commercial, employment, neighbours and matrimonial mediations.   Some have worked and some have not.  It is pretty clear which parties need a nudge on the path to settlement and which have dug themselves in so hard and deep that only a judge can sort them out and impose a solution.  Compulsory mediation, such as the Government wishes to introduce into ancillary relief and employment disputes is a colossal mistake.  Lots of cases obviously and utterly unsuitable to mediation will be forced and cajoled into the process  - lots of time and money will be wasted.  Many cases turn on legal arguments which cannot be resolved at mediation and many cases require extensive disclosure before mediation can be considered.  I suspect that this will especially be the case with matrimonial financial matters because it is often the case that a Judge has to force the parties of the marriage to give full disclosure, before settlement takes place.  Couples always hide assets - especially potential inheritances and foreign property to try and avoid these being taken into account in any settlement.  Indeed insufficient disclosure can be ground for setting aside a settlement  - I suspect many a premature but compulsory mediation settlement will be set aside on this ground if parties are forced to mediate before full disclosure is achieved.   Then there are the mediations which all lawyers have been too - where everybody knows there is no prospect of settlement, but it is fun arguing about things for hours if not days at end - a new way of adding to the costs bill of inevitable litigation - in these circumstances, mediation actually inflates and not deflates lawyers' bills.  My favourite is the vehement boundary dispute between neighbours - £100,000s of costs on both side - literally millimetres dividing the parties - lawyers and surveyors enjoying the whole futile exercise.  Then someone suggests mediation and then very valuable time which could have been taken up with a Judge imposing a sensible solution, is taken up with both sides insulting each other in an crescendo which ends with them in separate rooms, unable to face each other.    In other words, experience tells me that mediation is a good idea in many cases, but not all, and often it can be a litigation tactic to bleed the other side dry of costs and time, and should certainly not, ever, be compulsory.......

GOODBYE CLAMPING

I was overjoyed over the announcement of the criminalisation of car-clamping.  Now the operative clause is there for all to consider in the Public Reading of the Protection of Freedom Bill - clause 54.  The public who have expressed their views to HMG so far have spotted the flaw in the Bill -

If you park beyond a barrier - raised or not- then you can still be clamped - so there'll be a boom in barrier sales then - at least the clause should require a big warning notice stuck on or about the barrier?

Still - it looks like this is going to become a reality at last - FREEDOM from clampers (where there is no barrier!)