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.

Life and Style
“What is it like being a girl?” was the question on the lips of one inquisitive Reddit user this week
News
peopleDave Legeno, the actor who played werewolf Fenrir Greyback in the Harry Potter films, has died
Arts and Entertainment
Armando Iannucci, the creator of 'The Thick of It' says he has
tvArmando Iannucci to concentrate on US show Veep
Life and Style
beauty
PROMOTED VIDEO
Sport
Luis Suarez looks towards the crowd during the 2-1 victory over England
transfers
Life and Style
Swimsuit, £245, by Agent Provocateur
fashion

Diving in at the deep end is no excuse for shirking the style stakes

Sport
German supporters (left) and Argentina fans
world cup 2014Final gives England fans a choice between to old enemies
Arts and Entertainment
A still from the worldwide Dawn of the Planet of the Apes trailer debut
film
News
peopleMario Balotelli poses with 'shotgun' in controversial Instagram pic
News
A mugshot of Ian Watkins released by South Wales Police following his guilty pleas
peopleBandmates open up about abuse
Sport
Basketball superstar LeBron James gets into his stride for the Cleveland Cavaliers
sportNBA superstar announces decision to return to Cleveland Cavaliers
Sport
Javier Mascherano of Argentina tackles Arjen Robben of the Netherlands as he attempts a shot
world cup 2014
Arts and Entertainment
The successful ITV drama Broadchurch starring David Tenant and Olivia Coleman came to an end tonight
tv
Sport
Four ski officials in Slovenia have been suspended following allegations of results rigging
sportFour Slovenian officials suspended after allegations they helped violinist get slalom place
News
14 March 2011: George Clooney testifies before the Senate Foreign Relations Committee during a hearing titled 'Sudan and South Sudan: Independence and Insecurity.' Clooney is co-founder of the Satellite Sentinel Project which uses private satellites to collect evidence of crimes against civilian populations in Sudan
people
Arts and Entertainment
Balaban is indirectly responsible for the existence of Downton Abbey, having first discovered Julian Fellowes' talents as a screenwriter
tvCast members told to lose weight after snacking on set
Life and Style
More than half of young adults have engaged in 'unwanted but consensual sexting with a committed partner,' according to research
tech
Life and Style
A binge is classed as four or more alcoholic drinks for women and five or more for men, consumed over a roughly two-hour period
tech
Finacial products from our partners
Property search
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

    BC2

    £50000 - £70000 per annum: Harrington Starr: Business Analyst Consultant (Fina...

    Programme Support, Coms, Bristol, £300-350p/d

    £300 - £350 per day + competitive: Orgtel: My client, a leading bank, is curre...

    (Junior) IT Systems Administrator / Infrastructure Analyst

    £28000 - £32000 per annum + pension, 25 days holiday: Ashdown Group: A highly ...

    Finance Officer

    Negotiable: Randstad Education Birmingham: Randstad Education are seeking a Fi...

    Day In a Page

    A History of the First World War in 100 Moments: Peace without magnanimity - the summit in a railway siding that ended the fighting

    A History of the First World War in 100 Moments

    Peace without magnanimity - the summit in a railway siding that ended the fighting
    Scottish independence: How the Commonwealth Games could swing the vote

    Scottish independence: How the Commonwealth Games could swing the vote

    In the final part of our series, Chris Green arrives in Glasgow - a host city struggling to keep the politics out of its celebration of sport
    Out in the cold: A writer spends a night on the streets and hears the stories of the homeless

    A writer spends a night on the streets

    Rough sleepers - the homeless, the destitute and the drunk - exist in every city. Will Nicoll meets those whose luck has run out
    Striking new stations, high-speed links and (whisper it) better services - the UK's railways are entering a new golden age

    UK's railways are entering a new golden age

    New stations are opening across the country and our railways appear to be entering an era not seen in Britain since the early 1950s
    Conchita Wurst becomes a 'bride' on the Paris catwalk - and proves there is life after Eurovision

    Conchita becomes a 'bride' on Paris catwalk

    Alexander Fury salutes the Eurovision Song Contest winner's latest triumph
    Pétanque World Championship in Marseilles hit by

    Pétanque 'world cup' hit by death threats

    This year's most acrimonious sporting event took place in France, not Brazil. How did pétanque get so passionate?
    Whelks are healthy, versatile and sustainable - so why did we stop eating them in the UK?

    Why did we stop eating whelks?

    Whelks were the Victorian equivalent of the donor kebab and our stocks are abundant. So why do we now export them all to the Far East?
    10 best women's sunglasses

    In the shade: 10 best women's sunglasses

    From luxury bespoke eyewear to fun festival sunnies, we round up the shades to be seen in this summer
    Germany vs Argentina World Cup 2014: Lionel Messi? Javier Mascherano is key for Argentina...

    World Cup final: Messi? Mascherano is key for Argentina...

    No 10 is always centre of attention but Barça team-mate is just as crucial to finalists’ hopes
    Siobhan-Marie O’Connor: Swimmer knows she needs Glasgow joy on road to Rio

    Siobhan-Marie O’Connor: Swimmer needs Glasgow joy on road to Rio

    18-year-old says this month’s Commonwealth Games are a key staging post in her career before time slips away
    The true Gaza back-story that the Israelis aren’t telling this week

    The true Gaza back-story that the Israelis aren’t telling this week

    A future Palestine state will have no borders and be an enclave within Israel, surrounded on all sides by Israeli-held territory, says Robert Fisk
    A History of the First World War in 100 Moments: The German people demand an end to the fighting

    A History of the First World War in 100 Moments

    The German people demand an end to the fighting
    New play by Oscar Wilde's grandson reveals what the Irish wit said at his trials

    New play reveals what Oscar Wilde said at trials

    For a century, what Wilde actually said at his trials was a mystery. But the recent discovery of shorthand notes changed that. Now his grandson Merlin Holland has turned them into a play
    Can scientists save the world's sea life from

    Can scientists save our sea life?

    By the end of the century, the only living things left in our oceans could be plankton and jellyfish. Alex Renton meets the scientists who are trying to turn the tide
    Richard III, Trafalgar Studios, review: Martin Freeman gives highly intelligent performance

    Richard III review

    Martin Freeman’s psychotic monarch is big on mockery but wanting in malice