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; Do you need financial advice on your investments, pension or insurance? Book a free consultation with an independent Financial Adviser at VouchedFor.co.uk

Finacial products from our partners
Property search
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

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

ES Rentals

    iJobs Job Widget
    iJobs Money & Business

    Recruitment Genius: Customer Service Advisor

    £15000 - £16000 per annum: Recruitment Genius: Customer Service Advisors are r...

    SThree: Trainee Recruitment Consultant

    £20000 - £25000 per annum + OTE £45K: SThree: SThree were established in 1986....

    Recruitment Genius: Compliance Manager

    £40000 - £60000 per annum: Recruitment Genius: A Compliance Manager is require...

    SThree: Talent Acquisition Consultant

    £22500 - £27000 per annum + OTE £45K: SThree: Since our inception in 1986, STh...

    Day In a Page

    John Palmer: 'Goldfinger' of British crime was murdered, say police

    Murder of the Brink’s-MAT mastermind

    'Goldfinger' of British crime's life ended in a blaze of bullets, say police
    The Real Stories of Migrant Britain: An Algerian scientist adjusts to life working in a kebab shop

    The Real Stories of Migrant Britain

    An Algerian scientist struggles to adjust to her new life working in a Scottish kebab shop
    Bodyworlds museum: Dr Gunther von Hagens has battled legal threats, Parkinson's disease, and the threat of bankruptcy

    Dying dream of Doctor Death

    Dr Gunther von Hagens has battled legal threats, Parkinson's disease, and the threat of bankruptcy
    UK heatwave: Temperature reaches 39.8 degrees on Central Line - the sweatiest place in London

    39.8 degrees recorded on Tube

    There's hot (London) and too damn hot (the Underground). Simon Usborne braved the Central line to discover what its passengers suffer
    Kitchens go hi-tech: From robot chefs to recipe-shopping apps, computerised cooking is coming

    Computerised cooking is coming

    From apps that automatically make shopping lists from your recipe books to smart ovens and robot chefs, Kevin Maney rounds up innovations to make your mouth water
    Jessie Cave interview: The Harry Potter star has published a feminist collection of cartoons

    Jessie Cave's feminist cartoons

    The Harry Potter star tells Alice Jones how a one-night stand changed her life
    10 best barbecue books

    Fire up the barbie: 10 best barbecue books

    We've got Bibles to get you grilling and smoking like a true south American pro
    Seifeddine Rezgui: What motivated a shy student to kill 38 holidaymakers in Tunisia?

    Making of a killer

    What motivated a shy student to kill 38 holidaymakers in Tunisia?
    UK Heatwave: Temperatures on the tube are going to exceed the legal limit for transporting cattle

    Just when you thought your commute couldn't get any worse...

    Heatwave will see temperatures on the Tube exceed legal limit for transporting cattle
    Exclusive - The Real Stories of Migrant Britain: Swapping Bucharest for London

    The Real Stories of Migrant Britain

    Meet the man who swapped Romania for the UK in a bid to provide for his family, only to discover that the home he left behind wasn't quite what it seemed
    Cheaper energy on the way, but it's not all sunshine and rainbows

    Cheaper energy on the way, but it's not all sunshine and rainbows

    Solar power will help bring down electricity prices over the next five years, according to a new report. But it’s cheap imports of ‘dirty power’ that will lower them the most
    Katy Perry prevented from buying California convent for $14.5m after nuns sell to local businesswoman instead

    No grace of God for Katy Perry as sisters act to stop her buying convent

    Archdiocese sues nuns who turned down star’s $14.5m because they don’t approve of her
    Ajmer: The ancient Indian metropolis chosen to be a 'smart city' where residents would just be happy to have power and running water

    Residents just want water and power in a city chosen to be a ‘smart’ metropolis

    The Indian Government has launched an ambitious plan to transform 100 of its crumbling cities
    Michael Fassbender in 'Macbeth': The Scottish play on film, from Welles to Cheggers

    Something wicked?

    Films of Macbeth don’t always end well - just ask Orson Welles... and Keith Chegwin
    10 best sun creams for body

    10 best sun creams for body

    Make sure you’re protected from head to toe in the heatwave