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  Warding off injustice

Anyone who encountered Sir Alan before his retirement after 18 years in the Court of Appeal was unlikly to have come away untouched by his distinctive wit.

Recently the New Law Journal ran a piece about Lord Justice Alan Ward’s retirement. Anyone who encountered Sir Alan before his retirement after 18 years in the Court of Appeal was unlikly to have come away untouched by his distinctive wit. His line in humorous anecdotes is legend. How about the time he leant over the bench and told a LiP to ‘get a life’? For offering that sage advice he was reprimanded by the judicial powers that be, despite the fact that many lawyers who have experienced such a LiP in action would actually agree with him!

Another LiP (associated with the Fathers for Justice campaign group) once appeared before him in full Darth Vader costume. Ward LJ politely asked him to remove his helmet and lightsaber, and proceeded to refer to him as ‘Lord Vader’ throughout the hearing!

Tricky case

One can therefore imagine Ward LJ’s heart sinking when confronted by a case conducted by LiPs on both sides (Wright -v- Michael Wright Supplies Ltd [2013] EWCA Civ 234). He began his judgment with the following:

‘[1] This judgment will make depressing reading. It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Some unlucky judge had to cope with the problems that inevitably arise in the management of a case like this. Here the short straw was drawn by His Honour Judge Anthony Thornton QC. He struggled manfully, patiently, politely, carefully and conscientiously. Many may not have done so…

‘[2] What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micromanage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission, which no longer offers legal aid for this kind of litigation, but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of 18 years’ service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.

‘[3] My second concern is that the case shows it is not possible to shift intransigent parties off the trial track onto the parallel track of mediation… Judge Thornton attempted valiantly and persistently, time after time, to persuade these parties to put themselves in the hands of a skilled mediator, but they refused. What, if anything, can be done about that? You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer.’

Wise words

James Wilson, Managing Editor of the New Law Journal, finds these to be wise words. He believes that Ward LJ’s remarks are obviously correct for at least five reasons:

  1. it is generally necessary for LiPs to be assisted with court procedure
  2. few LiPs have the skill of distilling relevant from irrelevant issues
  3. even highly educated LiPs are generally quite out of their depth in discussing any relevant authorities, statutes or points of principle, which therefore have to be explained at least to some extent (and even then the full significance is often not grasped)
  4. it is the duty of the other side’s barrister to draw all relevant authorities to the court’s attention and to identify arguable points the litigant might have missed, and this usually takes longer as the judge will want to be satisfied that duty has been discharged (it may also add to the – often unrecoverable – costs of the other side), and
  5. judgments often take longer because the judges feel obliged to include more detail, with little homilies explaining points of law that would not ordinarily be necessary. As many experts who have had dealings with LiPs will know, we can add to that list the problems arising when the litigant works with the expert direct. Gone is the professional filter the lawyer would normally provide. In such circumstances, significant care must be taken by the expert to ensure that the LiP grasps the important consequences of the expert’s overriding duty to the court and the significance of the expert’s duty to independence.

James Wilson sees a fundamental point being addressed by Ward LJ, namely justice being done – and being seen to be done. For a long time it was said that litigation could be afforded by the very rich or the very poor. With many of the latter group now denied legal aid, we end up paraphrasing that old cliché – justice, like the Ritz, is open to all.



Issue 86
April 2015

Warding off injustice
Warding off stuffiness

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