The Jackson consultation responses pull no punches but Grayling and the MoJ will ignore them

There is a palpable sense that civil justice in the UK has plunged off a cliff in the short time since the implementation of the Jackson reforms. A few of the responses to the Civil Justice Council’s consultation have been published. They make grim reading, particularly as we can be reasonably sure that neither the Lord Chancellor, Chris Grayling or anybody at the Ministry of Justice will actually read them or give a toss what anyone thinks about the ruin of the civil justice system.

Although some commentators blame Lord Justice Jackson personally for this (and even talk of a “right-wing conspiracy”), most are willing to acknowledge that there are wider forces at play here and that what we are left with is not what Jackson intended. How do we object? If we are outsiders we are ignored. What insider will raise his head above the parapet? What will happen to him or her?

We have a “Lord Chancellor” who knows no law, who has no feel for what is important about justice, and who just wants to deliver cuts to George Osborne like a small dog bringing a ball to its master. It is said that the senior judiciary decline to refer to Grayling as “Lord Chancellor” out of contempt. I begin to wonder what we should be thinking of the senior judiciary.

Grayling’s personal conduct should be irrelevant: the supine little people who supervise MPs’ expenses turned a blind eye to Grayling’s use of Parliamentary expenses to buy an unnecessary flat, so we should ignore it, notwithstanding that equivalent conduct by a benefits claimant would have landed him in jail; bare-faced lying is a natural trait for a politician, and while we might hope for better in a holder of the ancient office of Lord Chancellor, we get what are given. So we should ignore all this and judge Grayling solely by what he does; that is enough to hang him anyway.

Anybody of talent has apparently left the Ministry of Justice, which is staffed by standard-issue overpaid time-servers and by academics who have failed to hack it in the strenuous world of university life. 29 of them are apparently paid over £100,000 and two “earn” more than £140,000. There are plenty of bright, able people in the civil service, and I entirely buy the idea that if you pay peanuts you get monkeys; we have the worst of all worlds at the MoJ – some very expensive monkeys.

Their amendments made to Lord Justice Jackson’s recommendations, the removal of front-line staff, and the failure to modernise the courts’ back-office systems all coincide with new rules and with the reduction of legal aid; as anyone could have predicted (and many did) this has flooded the court with litigants in person whose understandable ignorance of law and procedure increases the difficulties faced by already hard-pressed solicitors, and inevitably extends hearing times. The combination of these factors is a court system which is unfit for its purpose.

Add to that the attitude of the senior judiciary expressed in the long tail to the Mitchell judgment in the Court of Appeal. Judges of this standing have no real idea about the pressures of running a business; most will have spent their lives as barristers taking instructions from the grander firms on big cases and are ignorant of the daily life of the ordinary solicitor in an ordinary firm trying to manage ordinary cases. Have a look at what the Master of the Rolls said about solicitors’ workloads in Mitchell – “insulated from real life” would cover it. Ministry of Justice civil servants, by definition, have no understanding at all of commercial life after careers spent shuffling paper between 9.00am and 5.00pm in exchange for generous salaries paid without regard to usefulness or effort.

Meanwhile, solicitors and barristers at all levels in the civil courts (and don’t let me start on what Grayling and his MoJ acolytes  are doing to the criminal courts) struggle with uncertain rules and almost complete lack of court services. Those are increasingly delegated to private companies whose business ethics match Grayling’s own carefree attitude to his expenses, whose services are what you expect when profit is the only driver, and who get repeat business from the MoJ pen-pushers even as the police investigate their management of previous contracts.

All that is by way of introduction to the first wave of published reactions to the MoJ’s consultation on the Jackson Reforms. I give you three of them:

Richard Harrison is a partner at Laytons, a senior and respected litigator, and one who correctly anticipated the burdens (unnecessary burdens in most cases) which the reforms would impose. You get the flavour of his submissions from this passage:

If the Jackson reforms were intended:

  • to diminish the attraction of the UK as a forum for international litigation;
  • to discourage the pursuit of litigation, however meritorious, by increasing the risks and costs to clients;
  • to enable judges to clear their lists by encouraging (a) administrative efficiency over individual justice and (b) an increasingly obstructive and combative culture amongst practitioners;

they have succeeded.

The City of London Law Society submission is similarly brief, to the point and damningIt says, amongst other good points:

The Committee is also concerned that some judges have a limited understanding of what is required to run a major commercial case. Conducting large scale litigation is a significant exercise in project management, an exercise that many judges will never have undertaken.

It is also critical of the budget process, with a succinct analysis of its defects.

The response which has attracted most positive comment is from trades union solicitors Thompsons. You can take your pick from the quotations in this; this passage picks up both the post-Mitchell fear and the MR’s lordly disdain for the difficulties of daily practice:

25.     In line with CPR provisions, parties would previously work together to agree appropriate extensions of time for compliance with directions, but the recent spate of procedural decisions following on from the Mitchell case (Mitchell v NGN [2013]EWCA Civ 1537) has resulted in what we can only describe as a climate of fear, with parties now issuing applications to extend time in cases where previously an agreement would have been reached. This has resulted in the courts being swamped with applications which only causes delay and is completely contrary to the overriding objective of dealing with cases expeditiously.
26.     Senior members of the judiciary, with little or no experience of running a business, making statements that simply do not reflect the current business environment makes a mockery of fairness. We welcome Jackson’s efforts to ensure consistency and endorse his view that court orders should be complied with but in the current climate with personal injury firms going into administration or having to merge to survive, a statement that “ solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for a failure to meet deadlines” and that solicitors “ should either delegate the work to others in the firm, or if they are unable to do this, they should not take on the work at all” ( Mitchell – per Lord Dyson MR) does not reflect reality. 

Thompsons is at pains to draw attention to areas where the regime which was adopted differs from that which was proposed by Lord Justice Jackson.

There is little justice here and the combination of factors means that there is no benefit in either administrative or commercial terms – indeed, we have the reverse by the time extended timelines and the courts’ own back-office and customer-facing incompetence is factored in. I do not, frankly, expect the dumb animals at the Ministry of Justice to understand any of this. I would have hoped, however, that the senior judiciary responsible for the direction of procedural powers would recognise that mistakes have been made and move swiftly to remedy them. Recent events suggest that this hope is misplaced.

We are, apparently, about to see serious increases in court fees, notwithstanding the poor quality of the service offered by HM Courts Service. The MoJ civil servants increasingly look like the shysters who run our railways – greedy, incompetent and completely divorced from the users they purport to serve as they hike prices while reducing services. They and Grayling seem to be in thrall to management consultants, those bright young things whose ignorance of a subject only increases their self-assured eloquence about it, living embodiments of Wilde’s comment about those who know the price of everything and the value of nothing.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Chris Grayling, Civil justice, Court Rules, Courts, CPR, Jackson Reforms, Judges, Ministry of Justice. Bookmark the permalink.

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