Law: Paying for the letter of the law: Sharon Wallach hears complaints about the court system

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The Independent Online
MANY private-client solicitors are expressing dissatisfaction with aspects of the legal system in practice, on both the civil and criminal sides.

Robert Morfee is the principal of the civil litigation team at Clarke Willmott & Clarke, a 39-partner firm in Yeovil, Somerset. Mr Morfee had had a particularly bad week when he spoke to the Independent about his concerns, describing the courts as an 'unimaginative system, inefficiently run'. Costs to the private client, he says, are made unnecessarily high by the amount of hoops lawyers have to jump through.

First, he says, there is the oral tradition in the courts system. This extends to procedural matters, such as seeking time extensions. In these cases, Mr Morfee asks, why does the lawyer have to turn up in person?

'Twentieth-century business uses the post - so, for that matter, did 19th-century business. But courts get pear-shaped about letters,' he says.

Attendance for five minutes can take, typically, two hours of a lawyer's time, for which the client pays.

Generally, the costs involved throughout the courts system are phenomenal, Mr Morfee says. 'The Lord Chancellor is upset by the costs of legal aid. I understand that. But it is no better for the private litigant, who is paying the same sort of bills.'

The quality of judges could also do with examination, in Mr Morfee's view. 'In London,' he says, 'the district judges tend to be specialists. In the provinces, they may be well educated, but they are for the most part generalists. This is particularly true of the part-time deputies. London is considered the only place that matters. We get a second-class service in the provinces.

'It's not a personal criticism of individuals - in fact, they are usually nicer people in the provinces.'

Mr Morfee also tries to be nice to his clients. People go to lawyers because they have to, he says. 'Like groceries, you need law. But groceries are sold in a range of shops. Would you shop at a supermarket run by the Lord Chancellor's Department?

'People think we like charging high fees. What I want is to have satisfied customers and to sell good service at reasonable cost. Most of my firm's practice involves the ordinary man in the street, who ought to be able to come to law and get a reasonable service at a reasonable expense.'

The industrial tribunals show how it should be done, Mr Morfee says. 'Most of the interlocutory work is done by post - the whole system is a lot less hidebound. That should be happening in the county courts, but the ethos of service to the public is absent. Because it's a monopoly, there is no incentive to change.'

Views of the system are no less jaundiced in the criminal arena. According to Stuart Miller, a sole practitioner in Wood Green, north London, the position of the legal-aided client is under considerable threat, partly, he says, because lawyers' fees are being drastically eroded.

The advent of standard fees in the magistrates' court (postponed to 1 June) is not welcomed by Mr Miller. 'Say I have a client charged with shoplifting. I get a psychiatrist's report, six or seven character references, and thoroughly prepare the case. After at least one pre-trial hearing, I will have done eight hours' preparation. If on the court doorstep the prosecution decides to drop the case because it is satisfied there is reasonable doubt, I will have a long face - my fee will be cut by 50 per cent. But if the client has to face the further humiliation of a court trial, and is found not guilty, I could claim a rate in excess of the standard fee.

'This is the real danger of the system. The Lord Chancellor's Department has not thought it out clearly enough. It says it is slimming the system and making it more efficient. What it is doing, and should be honest enough to say it's doing, is cutting costs - not making the system more efficient, but making it worse for the client.

'The client is subject to the lawyer's time, and the lawyer will do the barest amount necessary to present the case, which may not be the best and may well be the worst for the client,' Mr Miller says.

He believes he has identified one way to reduce costs. 'Leading counsel never appears without a junior and a representative from the solicitor's office. Is it necessary to have all that manpower? Historically, the purpose of the junior was to provide a second opinion for leading counsel. But how many second opinions does he need, and does he listen anyway?'

Criminal practitioners are also facing a marked drop in work because, Mr Miller says, the police are not charging as many suspects. 'Largely minor offences - such as shoplifting, or even street violence - where the cost of inquiries cannot be justified, are being dealt with by caution rather than by charge,' he says. 'It smacks of cost-cutting for the sake of it.'

The police now have to make fuller notes and complete all their paperwork before presenting a case to the Crown Prosecution Service. 'It takes up all their time and takes them off the street,' Mr Miller says. 'And then a large number of cases come back from the CPS marked caution or NFA (no further action). I believe that this is a deliberate direction from higher authority to cut down the number of cases in court.

'In practical terms, this has cut legal aid by millions, but the Lord Chancellor's Department won't accept that argument, saying that any cuts are only temporary.'

With fewer cases coming to court, the remaining cases come to court more quickly, Mr Miller says, and that puts pressure on solicitors to prepare more quickly - for less money.

'If we want the sort of society where the rights of the individual are unprotected, we should reduce access to lawyers. If we want a fair and decent society, we need trained lawyers in a strong legal system.'

(Photograph omitted)

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