If you don't like it, I'll see you in court

The unseemly rush to obtain legal redress is a mark of social failure, writes Nick Cohen
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The Independent Online
LAWYERS across Britain are watching keenly the fate of the Three Little Johnnies. The Johnnies - or to be precise two young men who claim their schools failed to spot they were dyslexic and a third who said he was wrongly diagnosed as having a low intelligence - want compensation for damage to their education and are preparing to go to court to get it. If they win, thousands of actions will follow.

For the British Dyslexia Association, fed up with having dyslexia dismissed as an imaginary ailment invented to explain the academic failure of middle- class children, the cases are a watershed. Victory would mean all schools will have to take dyslexia seriously or risk facing demands for tens of thousands of pounds of compensation. Hampshire County Council - which is being sued by Mark Christmas, a 21-year-old who claims his dyslexia was not diagnosed until he was 11 - has already responded by announcing plans to test all five-year-olds for dyslexia.

To local authorities the cases represent a huge threat. They fought all the way to the House of Lords to try to deny the three men the right to take action against them, and lost. The claims for damages could go ahead, said the Law Lords in June, because schools had a "duty of care" to assess learning difficulties and provide children with a proper education.

A new and profitable area of litigation could soon be open to the legal profession. "Who else will be able to sue, if these claims are upheld?" asked John Mead, claims manager for Zurich Municipal, a company which specialises in insuring local authorities. "Every parent who thinks little Johnny isn't doing as well as he should?" Well, yes, replies Carol Orton from the British Dyslexia Association. If the parents have a good case they will be able, and should be able, to call in the lawyers. Her list of those who will be helped by victories for the three includes children with special needs who want to be taught in mainstream schools, children with minor handicaps and illnesses and even precociously intelligent children who need extra tuition.

They will be joining a long queue. The British who like to think of themselves as stoical, uncomplaining sorts, have taken to suing with a vengeance. The past six weeks have seen Scotland Yard announcing it has paid out pounds 1.5m to settle 48 claims for assault and false imprisonment, while elderly investors have been urged by the Investors Compensation Scheme to sue Cheltenham &Gloucester, the former building society owned by Lloyds Bank, for allegedly selling them unsuitable income plans.

Lloyds itself was sued by Julia Verity and Richard Spindler earlier this month for negligently advising them to borrow pounds 150,000 to buy and renovate a house. Barclays is being sued for withdrawing overdraft facilities from a couple who ran a small business in Dyfed.

No area of life is safe from litigation. Tracey and Rachel Heald won pounds 3,000 from the Thomson holiday company by claiming they had been groped by waiters in a Tunisian hotel. Abta, the tour operators' association, glumly added that their members also get demands for compensation when customers fail to find love in the sun. "We remained sexually frustrated for the duration of our holiday," complained two women asking for money from the First Choice company, "because our apartment was too small." Meanwhile, newlyweds Lorraine and Steven Paterson have caused merriment by threatening to sue a Perth hotelier after they found him peeping into their hotel bedroom.

For harassed insurers, neither action begins to compare with the 1990 Coombs v Christchurch Borough Council case which can still provoke expressions of awed disbelief. Mr Coombs was a fitter working for the council. As he went to get some tools from a council shed, he stumbled on a sleeping cat, fell over and hurt his back so badly he had to stop work. He needed money, but who could he sue? The cat was blameless, as was its owner. Undeterred, his lawyers sued the council, claiming that the cat was a hazard that Mr Coombs could not have seen because it was sleeping in long grass which the borough should have cut. They won pounds 60,000 for their client.

It is easy to believe we are moving to a Darwinian legal world where the war for survival is fought in the courts. Actions in industrial tribunals for unfair dismissal rose by 90 per cent between 1986 and 1995. Claims against doctors for medical negligence are increasing by 15 per cent a year and are expected to cost pounds 125m in 1995.

Such statistics provoke denunciations from right-wing newspapers and commentators. American law, which produces the farce of ambulance-chasing lawyers, was "the sick joke Britain must avoid", said the Daily Mail. The House of Lords has been taken over by radical judges who seek to confront the Government and expand the scope of citizens' rights, claimed the Sunday Times. "We are moving," wrote Paul Johnson, "to a US-style forensic madhouse in which everyone sues everyone else all the time."

All this is very odd. The British right is usually full of admiration for all things American. It praises its free market, its lack of a proper welfare state, its low wages and its penal policies. But on no account must we follow the Americans when they talk of rights and exercise them in court.

Why not? The only good argument is that apart from going to war, resorting to the courts is the most cumbersome and futile method of settling disputes invented by man. British law is expensive, its adversarial system encourages confrontation rather than conciliation and it directs fees into the already well-filled pockets of lawyers.

In June, Lord Woolf, a law lord, urged sweeping changes to the civil courts to cut delays and expense, in a report to the Government which seems certain to be implemented. Central to his plans were proposals to end needless confrontation by encouraging people to settle disputes sensibly by mediation out of court. If they do not, judges will have powers to strike out tendentious actions and penalise unreasonable litigants with heavy costs.

Yet many cynical commentators suspect that Lord Woolf will be disappointed and that people will continue to seek legal redress for perceived grievances. "People seem to want to have their defining moment in court," said Ian Scott, professor of law at Birmingham University. "More and more they like to have their say and confront their opponents."

There are many familiar explanations for this trend. The rise of a consumer culture which demands perfect service from everyone from a tour guide to a surgeon, the growing mistrust of authority, increasing expectations and naked greed all encourage combativeness and assertions of rights. The simplest explanation is rarely considered: many people are using the law because they have no other choice.

For decades critics have been complaining that the British school system fails the bottom 40 per cent of pupils, allowing large numbers to enter the employment market in their late teens without any worthwhile skills. Initiatives to change this dismal record have had little impact. Would it be so bad if court action by former dyslexics finally forced schools to discover who is sitting at the back of the class unable to read? Would the Hampshire education authority have done anything if its former dyslexic pupil had relied on elected councillors, whose hands are tied by capping and spending restrictions, to act?

The explosive growth in industrial tribunal cases is clearly linked to the frustrations of people with nowhere else to go but the law. The collapse in the power of trade unions has left managers free to hire and fire pretty much at will. A TUC study released earlier this month found that one in three workers were frightened to take time off work sick; 44 per cent were afraid to criticise their boss; 24 per cent were unwilling to complain about unpaid overtime and 70 per cent were frightened of being fired.

Unions, which in the past could moderate macho managers and prevent workplace disputes leading to sackings, are either unrecognised or ignored. Once a good part of their work was mediating. They could confront central government and managers, but they could also help management by using their authority to defuse conflicts. Like other centres of power - local authorities, committees of the great and the good - they have been targeted by the Conservatives who, since 1979, appear to have feared their rivalry. Now, TUC officials say, union negotiators spend more of their time preparing legal claims against employers than sitting down and negotiating with them. We all experience the consequences of this, the main one being a legal system which faces huge numbers of claims from sacked workers.

The use of the courts to settle disputes in the workplace, the health service and the schools is a sign of social failure. Where are the institutions that can mediate between, on the one hand, central government, the financial institutions and big business, and on the other, the taxpayer, the patient, the pupil, the worker, the borrower and the consumer? Those much despised dinosaurs - the trade union movement and local authorities, freed from central government constraints and able to respond to local demands - may well be more effective and efficient as conciliators than the courts. They may even, on occasion, be more just.

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