Thread by @CliveWismayer

An insomniac’s thread on civil litigation.

Can’t sleep so I have decided to launch a vicious attack on barristers & the judiciary 🙂

What is ‘civil litigation’? It’s court disputes about contracts, accidents, trespass etc. It is vastly bigger than criminal litigation. I don’t .

.. know how much bigger but my guess would be about 10 - 1 in terms of nos. engaged in it & much more in terms of fees.

To begin, most judges started out as barristers. Pretty much all circuit judges, High Court judges, appeal & Supreme Court judges were barristers. This ..

.. means they know plenty of law but next to nothing about the real needs of court users (a proposition I will defend against all comers). In particular, they do not understand AT ALL the need for predictability, consistency or affordability. Instead they wallow in ..

.. Jesuitical disputes about angels & pins while their clients’ pockets empty. Let me illustrate with an example.

A sues B for, let’s say, libel. The court directs the parties to file cost budgets saying how much their costs will be, the idea being (laughably) to ..

.. prevent costs spiralling out of control. A’s solicitors file his budget (£500,000 - a laughable figure) a few days late & B’s solicitors argue that A should not be able to recover any costs at all because of the delay. Nothing. So, quite a bit at stake.

A hearing ..

.. is arranged to decide the point & barristers are instructed. They settle ‘skeleton arguments’ in advance. These are supposed to briefly summarise each advocate’s case, but in practise they run on for pages & pages, often supplemented with numerous ‘authorities’ (previously ..

.. decided, supposedly relevant cases). These skeletons will probably be sent to each respective barrister’s solicitor in draft for comment. Naturally, the solicitor will read the skeleton, charging for their time, & may make some observation necessitating some redrafting ..

.. which will occupy more chargeable time.

Then the barristers exchange their skeletons & file them with the court. You might think this would result in:

• the hearing being dispensed with & decided more cheaply on paper &
• failing that, the judge turning up having ..

.. read the skeletons & only needing a few short points to be dealt with, if any.

And you would be wrong on both counts. The hearing (if not adjourned for lack of time) will proceed aa though neither skeleton has been written, with each barrister taking the judge through ..

.. the whole thing in fine detail.

Invariably, the authorities will conflict. There will be previous decisions in which the court was strict & others in which it was lenient. But let’s say that, after the expenditure of many thousands of pounds, the court finds for B - the ..

.. delay in filing the costs budget was inexcusable & A will accordingly recover no costs even if he wins.

A decides to appeal. A rigmarole follows in which permission to do so must be obtained. This, too, is an area in which the authorities conflict but we will fast forward ..

.. & assume permission is eventually granted. Now, the appeal hearing is very much like the first one. New skeletons are exchanged. Very possibly, new barristers are instructed. And now, let’s say the appeal is allowed. A CAN recover costs after all but may have to ..

.. pay B’s costs of his application & appeal.

But now B appeals, this time to the Court of Appeal, from the High Court’s decision. The same charade is repeated & B wins. Mercifully, no appeal to the Supreme Court is allowed.

This utter farce will have cost tens, perhaps, ..

hundreds, of thousands of pounds. But hey! at least the law is now clear! File your costs budget late & you will be severely sanctioned! Learned articles about the case will appear in professional journals, some of them penned by the barristers involved, & these will ..

.. be pored over by solicitors & barristers alike.

But then comes the next almost identical but very slightly different case & this goes all the way to the Court of Appeal too with, you guessed it, the opposite result.

I know the barristers reading this will just ..

.. shrug & say, well how else should it be done? I know them. I worked with them for decades. They are by & large good people, deducated & skilled, but the art they practise is ridiculously detached from real life.

I don’t care whether it matters a lot or a little ..

.. that a costs budget is filed late, only that the result should be the same every time, that it should be predictable & that any conceivable issue about it be resolved briefly, quickly & cheaply.

The barristers & judges are simply not capable of seeing what they have ..

.. spent hundreds of years creating - a system that makes complete sense to them & to nobody else. I could have picked my example from any number of different fields of law & made the same point.

The system is a scam, nobody sees it, all reforms make it worse - because they ..

.. are always made by the judges themselves & they are entirely blind to their own part in it. Indeed, they would be affronted at the very idea.

I could go on for page after page but I’ll stop here for now. Feedback, not to say pushback, welcome. I will give as ..

.. good as I get.

The End

I have penned a follow up here.

https://twitter.com/clivewismayer/status/1276058075674402817?s=21

https://twitter.com/clivewismayer/status/1276058075674402817