Feud for thought: a test case for proposed reforms
Wednesday 27 September 1995
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.
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