Feud for thought: a test case for proposed reforms

The Swainstons don't blame their solicitor, they blame the system. They are more than pounds 20,000 out of pocket, and wish that they had never gone to court. "It has done us absolutely no good. We are the ones who have suffered," says Mr Swainston. "Not only have we not been compensated, but we ended up having to foot the bill for the whole case ourselves. It would have been a lot cheaper if I had simply offered Fox money to move."

Their solicitor, Andrew Charles, says: "In a long drawn-out case like this costs do mount up very steadily. A considerable part of the total amount were the fees for the trial itself, and there was a lot of correspondence beforehand between ourselves and Mr Fox's solicitors concerning the various allegations and counter-allegations. There was also a great deal of photocopying, travelling expenses to and from court, and interlocutory applications prior to judgment."

"I don't feel that my solicitor over-charged me," says Mr Swainston.

Clark Fox told the North Devon Journal after the case: "No one should ever contemplate suing somebody on income support. The one thing I do agree with Mr Swainston about is that British justice is farcical and a joke."

So how would proposed legal reforms help a case like the Swainstons'?

No win, no fee: solicitors are now allowed to charge up to double their normal fees if they take a case on this basis, currently for personal injuries only. The scope is likely to be widened to other areas, but no solicitor would be likely to touch a potentially complex and risky neighbour dispute, even if the other side were not legally aided, giving them almost a blank cheque.

Legal aid reform: the case would have been settled sooner if the merit test, deciding which cases deserve legal aid, was tighter. The test is supposed to be cases which ordinary people would bring if it was their own money, but in reality a case, once started, is seldom stopped on cost grounds by the Legal Aid Board, making an unfair fight. Lord Woolf in his Civil Justice review has suggested looking more carefully at which cases are important to society. Mr Fox had no assets except his house, and no job, so he could fight for ever, without even making a contribution to his fees. His blank cheque was eventually worth an estimated pounds 25,000 of legal service to him, and a private litigant with fewer savings than the Swainstons would have had to back down sooner. The means test could be relaxed by pumping extra money into the system, but it is hard to see any legal aid system in future prepared to underwrite a couple like the Swainstons who had pounds 30,000 in the bank.

Alternative Dispute Resolution: meaningless in a case like this, where the two sides are at each other's throats. There is no hope of mediation or arbitration unless both parties consent.

Fast-track courts: Lord Woolf proposes half-day hearings, within six months of the case being lodged. This could save preparation time and court time. The combined costs in this case could have been pounds 5,000 instead of pounds 50,000, even with barristers.

Single expert: one surveyor appointed by the court would have saved a day in this case, and several hundred pounds in fees.

Better case management: another Woolf proposal. An early pre-trial review by a judge would have determined that the case would last 10 days, not two, and the Swainstons could have got out by paying just a fraction of their eventual costs.

Small Claims Court: on Woolf's recommendation the limit for damages is about to be raised from pounds 1,000 to pounds 3,000. But the Swainstons wanted more than money, they wanted relief from the nuisance, which the small claims court cannot give.

Independent Partners; request a free guide on NISAs from Hargreaves Lansdown

News
people
Arts and Entertainment
Joel Edgerton, John Turturro and Christian Bale in Exodus: Gods and Kings
film Ridley Scott reveals truth behind casting decisions of Exodus
News
people
Sport
footballArsenal 2 Borussia Dortmund 0: And they can still top the group
PROMOTED VIDEO
Arts and Entertainment
An unseen image of Kurt Cobain at home featured in the film 'Kurt Cobain: Montage of Heck'
filmThe singers widow and former bandmates have approved project
News
Andy Murray with his girlfriend of nine years, Kim Sears who he has got engaged to
peopleWimbledon champion announces engagement to girlfriend Kim Sears
Arts and Entertainment
Jake Quickenden and Edwina Currie are joining the I'm A Celebrity...Get Me Out Of Here! camp
tv
Arts and Entertainment
George Mpanga has been shortlisted for the Critics’ Choice prize
music
News
Albert Camus (left) and Jean-Paul Sartre fell out in 1952 and did not speak again before Camus’s death
people
Arts and Entertainment
Roisin, James and Sanjay in the boardroom
tvReview: This week's failing project manager had to go
News
Ed Miliband visiting the Holocaust museum in Jerusalem. The Labour leader has spoken more openly of his heritage recently
newsAttacks on the Labour leader have coalesced around a sense that he is different, weird, a man apart. But are the barbs more sinister?
Arts and Entertainment
'Felfie' (2014) by Alison Jackson
photographyNew exhibition shows how female creatives are changing the way women are portrayed in advertising
News
i100
Life and Style
Fright night: the board game dates back to at least 1890
life
Environment
The vaquita is being killed by fishermen trying to catch the totoaba fish, which is prized in China
environmentJust 97 of the 'world's cutest' sea mammals remain
Finacial products from our partners
Property search
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

ES Rentals

    iJobs Job Widget
    iJobs Money & Business

    Langley James : IT Support; Helpdesk, VMware; Manchester, £18k

    £16000 - £18000 per annum: Langley James : IT Support; Helpdesk, VMware; Manch...

    h2 Recruit Ltd: Business Development Manager - HRO - £70k+ ote

    £35000 - £450000 per annum + £3k car, £70k ote: h2 Recruit Ltd: Do you want to...

    Citifocus Ltd: Newly Qualified Accountants - Risk Mgmt

    £Attractive Package: Citifocus Ltd: Prestigious financial institution seeks to...

    Citifocus Ltd: Operational Risk Analyst

    £Negotiable: Citifocus Ltd: Experienced operational risk professional with ban...

    Day In a Page

    Cameron, Miliband and Clegg join forces for Homeless Veterans campaign

    Cameron, Miliband and Clegg join forces for Homeless Veterans campaign

    It's in all our interests to look after servicemen and women who fall on hard times, say party leaders
    Millionaire Sol Campbell wades into wealthy backlash against Labour's mansion tax

    Sol Campbell cries foul at Labour's mansion tax

    The former England defender joins Myleene Klass, Griff Rhys Jones and Melvyn Bragg in criticising proposals
    Nicolas Sarkozy returns: The ex-President is preparing to fight for the leadership of France's main opposition party – but will he win big enough?

    Sarkozy returns

    The ex-President is preparing to fight for the leadership of France's main opposition party – but will he win big enough?
    Is the criticism of Ed Miliband a coded form of anti-Semitism?

    Is the criticism of Miliband anti-Semitic?

    Attacks on the Labour leader have coalesced around a sense that he is different, weird, a man apart. But is the criticism more sinister?
    Ouija boards are the must-have gift this Christmas, fuelled by a schlock horror film

    Ouija boards are the must-have festive gift

    Simon Usborne explores the appeal - and mysteries - of a century-old parlour game
    There's a Good Girl exhibition: How female creatives are changing the way women are portrayed in advertising

    In pictures: There's a Good Girl exhibition

    The new exhibition reveals how female creatives are changing the way women are portrayed in advertising
    UK firm Biscuiteers is giving cookies a makeover - from advent calendars to doll's houses

    UK firm Biscuiteers is giving cookies a makeover

    It worked with cupcakes, doughnuts and macarons so no wonder someone decided to revamp the humble biscuit
    Can SkySaga capture the Minecraft magic?

    Can SkySaga capture the Minecraft magic?

    It's no surprise that the building game born in Sweden in 2009 and now played by millions, has imitators keen to construct their own mega money-spinner
    The King's School is way ahead of the pack when it comes to using the latest classroom technology

    Staying connected: The King's School

    The school in Cambridgeshire is ahead of the pack when it comes to using the latest classroom technology. Richard Garner discovers how teachers and pupils stay connected
    Christmas 2014: 23 best women's perfumes

    Festively fragrant: the best women's perfumes

    Give a loved one a luxe fragrance this year or treat yourself to a sensual pick-me-up
    Arsenal vs Borussia Dortmund: Alex Oxlade-Chamberlain celebrates century with trademark display of speed and intuition

    Arsenal vs Borussia Dortmund

    The Ox celebrates century with trademark display of speed and intuition
    Billy Joe Saunders vs Chris Eubank Jnr: When two worlds collide

    When two worlds collide

    Traveller Billy Joe Saunders did not have a pampered public-school upbringing - unlike Saturday’s opponent Chris Eubank Jnr
    Homeless Veterans Christmas Appeal: Drifting and forgotten - turning lives around for ex-soldiers

    Homeless Veterans Christmas Appeal: Turning lives around for ex-soldiers

    Our partner charities help veterans on the brink – and get them back on their feet
    Putin’s far-right ambition: Think-tank reveals how Russian President is wooing – and funding – populist parties across Europe to gain influence in the EU

    Putin’s far-right ambition

    Think-tank reveals how Russian President is wooing – and funding – populist parties across Europe to gain influence in the EU
    Tove Jansson's Moominland: What was the inspiration for Finland's most famous family?

    Escape to Moominland

    What was the inspiration for Finland's most famous family?