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Reflections on the litigation landscape

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I have been a civil litigator for the past 36 years since qualifying as a solicitor. We now call civil litigation "dispute resolution" which is perhaps reflective of a different approach that has evolved over time.

Over these 36 years, the changes have been myriad and far reaching. When I started out, along with many others, I was something of a generalist – a jack of all trades. Specialism is now the order of the day and that is probably no bad thing as far as clients are concerned because, dare I say it, they get a more focused and professional service in consequence.

The complexity of the rules governing the conduct of litigation has increased exponentially. The procedural rules which govern the minutiae of every step taken in legal proceedings and indeed before the commencement of proceedings multiply like rabbits year on year.

The downside to all of this is that the costs of litigation have increased substantially despite the better efforts of the legislature, the rule makers, the judiciary and the profession to bring costs under control.

In my view, some of these efforts to limit costs have, unfortunately, had the opposite effect. An example is what is known as cost budgeting. Parties to a Court case now have to produce at an early stage in the process extremely detailed cost budgets which are intended to inform the opposition and the Court as to what that parties’ costs are likely to be up until the conclusion of the trial. Unfortunately, the whole cost budgeting process is extremely time consuming and, therefore, costly in its own right. Specialist cost practitioners have to be engaged and additional cost hearings are held by the Court to discuss and approve budgets. The aims behind cost budgeting were laudable, but in many cases it has simply led to an increase in the overall costs that the client ultimately has to bear.

The costs of one party in a typical trial of say three to four days in the High Court are likely to be around £150,000 - £200,000 – possibly more. If the other side are running up costs at the same level – as they generally will be – it is plain for all to see that the costs which one party will have to bear at the end of the day (generally the loser!) are likely to be punitively high, and a very real risk to a party’s financial wellbeing.

All is not doom and gloom, however. The focus on costs and the properly informed recognition by clients of the potential cost consequences of taking matters through to a full trial have definitely led to parties seeking to compromise their disputes sensibly.

Compromise was often seen by parties to a dispute as being a dirty word. It should not be. It is a pragmatic and sensible way of resolving disputes.

Judges now proactively encourage parties to try and settle disputes at an early stage in the Court proceedings through ADR – Alternative Dispute Resolution. Indeed, with such a change in emphasis, parties who unreasonably refuse to try and settle disputes through ADR can be penalised in costs - even if they are ultimately successful.

There are many forms that ADR can take, but in my experience the most effective is formal mediation. This is a subject in its own right, but essentially mediation involves the parties through their lawyers appointing a trained mediator – very often a Barrister. A mediation day is fixed and the parties attend the mediation with their respective legal teams. The mediator cannot impose a settlement on the parties. His sole function and one which most mediators discharge very effectively is to draw the parties to a position – a compromise – which they can both comfortably live with.

In my particular specialist area of contentious trust and probate work, we refer the majority of our cases to mediation. I would say that in 85 – 90% of cases a compromise acceptable to all parties is reached. The key to achieving a successful outcome is to prepare the case carefully in advance, so that you are negotiating from a position of strength.

I always say to clients embarking on mediation that they need to approach it on a glass half full basis.

Settling without going to Court removes cost risk from the equation, removes stress and worry, and can sometimes preserve relations which would otherwise become irreparably damaged.

There are of course cases where ADR is inappropriate, and where a trial of the issues is the only answer.

To those of my clients who say "it’s the principle" or "I want my day in Court" I would respond "principles cost money" and that your day in Court may well not bring you the satisfaction that you crave.

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