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?
SPONSORED FEATURES
Independent Dating
and  

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

ES Rentals

    iJobs Job Widget
    iJobs Money & Business

    Recruitment Genius: Sales Executive / Foreign Exchange Dealer - OTE £40,000+

    £16000 - £40000 per annum: Recruitment Genius: A Foreign Exchange Dealer is re...

    SThree: Experienced Recruitment Consultant

    £20000 - £40000 per annum + OTE + Incentives + Benefits: SThree: Established f...

    SThree: Trainee Recruitment Consultant

    £20000 - £25000 per annum + OTE 40/45k + INCENTIVES + BENEFITS: SThree: The su...

    Recruitment Genius: Collections Agent

    £14000 - £16000 per annum: Recruitment Genius: This company was established in...

    Day In a Page

    The long walk west: they fled war in Syria, only to get held up in Hungary – now hundreds of refugees have set off on foot for Austria

    They fled war in Syria...

    ...only to get stuck and sidetracked in Hungary
    From The Prisoner to Mad Men, elaborate title sequences are one of the keys to a great TV series

    Title sequences: From The Prisoner to Mad Men

    Elaborate title sequences are one of the keys to a great TV series. But why does the art form have such a chequered history?
    Giorgio Armani Beauty's fabric-inspired foundations: Get back to basics this autumn

    Giorgio Armani Beauty's foundations

    Sumptuous fabrics meet luscious cosmetics for this elegant look
    From stowaways to Operation Stack: Life in a transcontinental lorry cab

    Life from the inside of a trucker's cab

    From stowaways to Operation Stack, it's a challenging time to be a trucker heading to and from the Continent
    Kelis interview: The songwriter and sauce-maker on cooking for Pharrell and crying over potatoes

    Kelis interview

    The singer and sauce-maker on cooking for Pharrell
    Refugee crisis: David Cameron lowered the flag for the dead king of Saudi Arabia - will he do the same honour for little Aylan Kurdi?

    Cameron lowered the flag for the dead king of Saudi Arabia...

    But will he do the same honour for little Aylan Kurdi, asks Robert Fisk
    Our leaders lack courage in this refugee crisis. We are shamed by our European neighbours

    Our leaders lack courage in this refugee crisis. We are shamed by our European neighbours

    Humanity must be at the heart of politics, says Jeremy Corbyn
    Joe Biden's 'tease tour': Could the US Vice-President be testing the water for a presidential run?

    Joe Biden's 'tease tour'

    Could the US Vice-President be testing the water for a presidential run?
    Britain's 24-hour culture: With the 'leisured society' a distant dream we're working longer and less regular hours than ever

    Britain's 24-hour culture

    With the 'leisured society' a distant dream we're working longer and less regular hours than ever
    Diplomacy board game: Treachery is the way to win - which makes it just like the real thing

    The addictive nature of Diplomacy

    Bullying, betrayal, aggression – it may be just a board game, but the family that plays Diplomacy may never look at each other in the same way again
    Lady Chatterley's Lover: Racy underwear for fans of DH Lawrence's equally racy tome

    Fashion: Ooh, Lady Chatterley!

    Take inspiration from DH Lawrence's racy tome with equally racy underwear
    8 best children's clocks

    Tick-tock: 8 best children's clocks

    Whether you’re teaching them to tell the time or putting the finishing touches to a nursery, there’s a ticker for that
    Charlie Austin: Queens Park Rangers striker says ‘If the move is not right, I’m not going’

    Charlie Austin: ‘If the move is not right, I’m not going’

    After hitting 18 goals in the Premier League last season, the QPR striker was the great non-deal of transfer deadline day. But he says he'd preferred another shot at promotion
    Isis profits from destruction of antiquities by selling relics to dealers - and then blowing up the buildings they come from to conceal the evidence of looting

    How Isis profits from destruction of antiquities

    Robert Fisk on the terrorist group's manipulation of the market to increase the price of artefacts
    Labour leadership: Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea

    'If we lose touch we’ll end up with two decades of the Tories'

    In an exclusive interview, Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea