A judicial surgery....

I get troubled by huge legal fees in disputes, countless non-recoverable management costs, inappropriate use of adjudication, some immoral and unethical tactics and so on. Of course we must strive to avoid lengthy/costly disputes as best we can and only press the formal legal button as an absolute last resort, but once that button is pressed then that's it; you are in the grips of a process that isn't exactly designed to be time/cost effective. I can't see previous reforms have really made that step change difference in dispute resolution.

So here's some thoughts on how we could make it a more just process.....open a few 'dispute surgeries'. This is paid for by Govt who should get a good return on fewer formal disputes and less Court fees. The  'doctors' would be most likely be practical people - judges, the odd expert and so on. Their role (say 2 of these 'doctors' at a time) is to have a no more than say 60mins consultation with both parties in dispute (or at least one of them!). They would listen to the basic facts presented and how the parties would best like to resolve the dispute then make a decision as to the most appropriate means to resolve the dispute - it could be mediation, conciliation, adjudication, arm wrestling or straight to arbitration or litigation.

Rather than force us through adjudication which seems to me to be utterly inappropriate and massively abused in many instances I hear of, the 'doctor(s)' writes a prescription and the parties book an appointment at the chemist to get their dispute solving medicine. I would love the 'doctor(s)' to be able to say the sum in dispute is £100k so the parties cannot each spend more than say £40k in costs (or whatever) preparing for the hearing (or if they do they bear them). We get appropriate dispute resolution decided by sensible experts with a sensible cap on the input from both parties in getting to the truth as quickly as possible

Sensible or stupid; possible or impossible (as too many self-interests)?

How about capping/limiting legal costs in cases?

In the Ampleforth Abbey Trust v Turner & Townsend Project Management Limited, I've read a few commentaries on lessons learnt and none seem to come from the angle I'm looking from (not surprising some might say). Although there are no doubt some salutary lessons on letters on intent, limits of liability and all that stuff, that I can see the losers (weren't both parties losers really in this thing going to Court?) were told to pay the winners a few hundred thousand pounds. Where am I going with this, well it's all the other costs of course - legal fees, expert witnesses, the judge, the court, management lost time of both organisations and so on. I'm sure it might be easy enough to find out the legal fees in this case but it would not surprise me if these were many times the award amount.

Is this a problem? Of course it is! Apart from why do these sorts of cases have legal fees likely heavily outweighing the disputed amount, why are the parties and their advisers allowed to do this? Here's a thought, forget the highly dubious 'no win, no fee' and relying on justice through award of costs, how about costs recovery of the parties however incurred cannot be more than the sum awarded - or words to that effect, but you get my gist?

Where is the business case for spending more costs than the sum at stake, this from the perspective of the parties? I'm aware such costs can be sometimes clipped back but I'm talking about throwing the whole system upside down so the parties have to seriously think about the sum at stake, how much legal/management etc time/fees they can therefore commit and maybe, just maybe, realism will take a grip and we will have some sensible outcomes.

Just a thought, actually that prompts another thought....