Preface : Firstly, may i apologise for the metaphor salad that this post has become. A mixed metaphor is a sign of a tired blogger.
It’s always been merely a matter of time before collective failures leading to adjournments came to bite lawyers on the arse in the shape of an adverse costs order. It has been hinted at often enough. There have been expressions of dismay on twitter at the flesh eating spectacle of judges laying into solicitors, but I see little surprise at the judgment of His Honour Judge Bellamy in Re L (Case Management: Wasted Costs)  EWFC B8 (04 March 2016) (expertly covered as always by Suesspicious Minds in Wasted Costs Orders Against Everyone!). Although the fact that the orders were multilateral-wasted–costs-orders seems to my parochial family lawyer mind rather unique (I just made that term up – it probably has a snappier name).
But in our overheating, fritzing, jittering family justice system there are serious imbalances between responsibility and remuneration, between expectation and human capability, between workload and manpower. Costs orders are a symptom of the dysfunction and of judicial frustration, but they are not the cure. They are medicine of last resort which will not make the patient better, but will cause some other iatrogenic expression of dysfunction.
What really struck me about this judgment is the sad familiarity of paragraphs 1-40 which set out what went wrong in order to lead to a disastrous adjournment of a fact finding hearing on day 1. I’ve seen permutations of it all before so many times, from the perspective of parents’ advocate, child’s advocate and of the local authority. This stuff makes me furious. It shouldn’t happen. But it does. Regularly. It doesn’t happen regularly because there are bunches of lazy solicitors out there coining it in for sipping lattes all day with their feet on their desks (although every profession has a few of those). It happens because there is a systemic problem. There are culpable failures by a party that on occasion justify the making of an inter partes or even a wasted costs order – but treating a systemic problem by penalising individuals (or individual firms or local authorities) won’t work.
Costs orders in family proceedings, and wasted costs orders in any proceedings are reserved for the most unusual situations and grievous of failures. Sadly, the scenario drawn in the judgment is not exceptional. The judgment sets out the basis for making wasted costs orders (i.e. ordering that the individual lawyers or their firms should pay the costs wasted), in short where conduct is improper, unreasonable or negligent. In this case the court was considering whether conduct was negligent in light of the importance of compliance and case management, rather than improper or unreasonable. The judgment sets out the relevant extracts from the key authority Ridehalgh v Horsefield, and Watson v Watson  2 FLR 194.
There are of course, several obvious failures to act, some individual and some collective. The local authority should have taken the initiative in identifying missing disclosure on receipt. The parents solicitors – and the child’s – should also have chased and chased sooner. One one level there is no excuse for this, and even if one representative dropped a ball someone should have picked it up well before counsel were dropped in the soup shortly before the final hearing.
What is striking is that HHJ Bellamy concludes at pa 64 that :
“In that context it seems to me that any act or omission which amounts to a breach of the duties I have identified [the overriding objective and statutory duty to set and maintain a timetable of not more than 26 weeks] and which leads directly to the wasting of court time and/or to delay in disposing of the case is likely to be regarded as ‘negligent’ for the purpose of s.51(7) of the Senior Courts Act 1981 [wasted costs].”
I’m not sure that the conclusion necessarily follows the proposition. One has to see these sorts of now common failures against a backdrop of what is economically and practically feasible given the funding system and pressures that we are given to work with. Is it negligent to fail to do something it is not practically possible to do?
Here the system is looking for who to blame, but we should be asking ourselves why this keeps happening? Why not one of the (at least four) lawyers (or the judge) twigged they needed to act to avoid an adjournment.
But let me tell you why, from my perspective, this stuff keeps happening. There are a number of “confounding factors” here.
Firstly, increasing numbers of cases ever since Baby P and a further ramping up of numbers since Re N (as set out at the foot of the judgment and by His Honour Judge Wildblood QC in his recent newsletter here, which is incidentally sets out a different approach from a different DFJ to the problem HHJ Bellamy was trying to tackle) are coupled with reducing numbers of court staff and general court efficiency. Everyone in the court building is working flat out and yet the wheels are falling off. Listing pressure is huge (As Suesspicious Minds observes, there are no wasted costs orders against HMCTS when there is no judge available or when matters go part heard due to over-listing or failure of videolinks – or (say it quietly) when a judge makes a bum call when case managing that later comes back to bite him).
Secondly, law firms carrying out legal aid work have been operating for some years on the basis of very narrow margins per case and therefore a high risk of working at a loss if the some-would-say-capricious Legal Aid Agency decide to reject some claim or other (which they often do). The fee structure in public law work has resulted over the last few years in barristers being (generally) instructed later and less often, meaning their workload is far more weighted towards the latter end of cases than the early stages and their prep time per hearing is far greater. Basically, where some of my cases each week used to involve a full file or more, it’s a surprise and a blessing now if one is in a mere ring binder (yes, notwithstanding the bundle practice direction).
Thirdly, ever more strictures, expectations and increasing case management demands are heaped upon us every week. There is no let up (I note in passing on the topic of my pet subject that this environment is one reason why the Transparency Guidelines are such a damp squib in practice. Who has got time to give an actual hoot? For most members of the judiciary, social work and legal professions this is so far down the list of priorities it doesn’t even register).
So, what happens in cases requiring significant amounts of disclosure is this: Police and medical disclosure is ordered. Often it is not produced the first time round, perhaps for legitimate reasons such as there being an ongoing criminal investigation which is at such a stage as would be prejudiced if disclosure was made. Often it is produced but some pieces are missing. If the parties are lucky this will be spotted and remedied pretty quickly. But where it isn’t this is the sort of disaster that unfolds.
It is the collective responsibility of each lawyer involved in a case of this sort to read, check and chase disclosure. I am no longer surprised when I read a set of papers in a well advanced case and find that nobody has acted on the obvious absence of medical photographs or notes, transcripts of police interviews of parents or children, missing section 9 statements or police logs. I can’t tell you how many hearings I have been instructed for that have involved frantic salvage attempts when counsel are instructed and on receipt of the brief say “but where is the XXXX?”. Sometimes, but not always, XXXX is something that has been asked for before. It is not just third party disclosure, it might include (for example) evidence from the family finding team of the viability of adoption for a child who is a less than obvious candidate, ADM records or some primary evidence such as a case note that has not previously been sought.
There was a time when I saw this as neglectful of the lawyers who had been involved before (mainly but not exclusively solicitors). And a part of the explanation lies in fact that specialist advocates (whether solicitor advocates or bar) tend to be more forensically minded. But it is far far more complex and multi-layered than that. The bar have the advantage generally of being the fresh pair of eyes, and ought therefore to spot the problems that others have not noticed accumulating, although they rarely have the advantage of any time to resolve such difficulties the night before a hearing. The solicitors on the other hand, who will have had conduct of the case throughout, and perhaps the early advocacy, will be expected to manage many other cases in order to ensure there is some profit margin. They will be expected to comply with case management directions, self report if they don’t, see clients, deal with urgent hearings, issue a C2 application for permission to breathe, liaise endlessly with the LAA about prior authority and certificate difficulties, chase absent clients – the reality is that when counsel is booked for the final hearing they may leave the detailed reading of the disclosure to counsel. Where there are case management hearings conducted by someone other than the person who will carry the can at the final hearing it can be difficult to bring sufficient focus to disclosure to weed out these problems. Finding time to read enormous amounts of disclosure, checklist documents and the like for a 30 minute hearing when you have a deadline for a response to threshold the following day is very difficult. So I don’t condone it, but the fact that it is happening more and more suggests to me this is more about the systemic pressure than about laziness or incompetence. And this is why the fresh eyes of counsel bulge in horror when some briefs are received – solicitors are firefighting day in day out, like hamsters on a compliance-wheel.
Similarly, the amount of papers I now receive each week means that even if I am lucky enough to receive my papers a few days in advance I may well not have time to read them until the night before the hearing, by which point it is pretty difficult to remedy any substantial deficiency in disclosure. Even if I have had papers in a trickle in between hearings it may be very difficult to prioritise reading those papers when a) there is no fee payable and b) I have three files to read for an actual hearing tomorrow and c) I know I will need to re-read the papers again the night before because I will have “memory dumped” the information for another case by then.
Advocates like me often find they have incomplete papers – sometimes because the local authority has failed to add documents to the bundle and when counsel is instructed they are sent only what is in the paginated court bundle, sometimes because someone forgets to copy us in or forward something on. Sometimes because the volume of electronically distributed material into the clerks room is so vast that something disappears into the ether and is not even reported missing. Sometimes a solicitor will elect (out of misplaced kindness) not to send checklist documents or other material removed from the bundle – this is a false economy in my experience (I speak from bitter and recent experience when I say that turning up for a final hearing where threshold is disputed without having seen the primary evidence that has been removed from the bundle by agreement between solicitors at an earlier juncture is discombobulating and makes it *slightly* tricky to advise a client). All of this bundle confusion makes it difficult for an advocate to spot key non-disclosure early or at all.
Perhaps in part the long abandoned and now quaint idea of continuity of counsel throughout a case that was once a core component of the PLO (or whatever its previous incarnation was called) is the answer. But that isn’t the whole answer. Because there is a gap in expectations here. A solicitor who sends papers in little parcels without reading them to counsel in between hearings considers the buck successfully passed. Counsel who receives those papers is not actually instructed to do anything, far less paid for doing so. Most often counsel will read, comment, raise action points. But there are limits. Occasionally it is necessary to self-impose some boundaries – if I burnout I’m no use to anyone. And unless we are asked to advise in conference (for the grand sum of £120) it ISN’T actually our job. It remains the primary responsibility of the solicitor with conduct.
And bashing the failures of the solicitors (it appears in this case it was just solicitors but in other cases of failure to spot or flag problems at a hearing it might also be counsel) is not necessarily the answer – we have to ask why this happens so often? And how the remedy will cure the patient (I think this question is what the FLBA tried clumsily to ask last year when it raised the issue, but it was received as solicitor bashing and the important point got lost in the upset).
Because if this widespread yet undesirable sort of professional failure is negligent, then logically there ought to be a lot more wasted costs orders being made. And so the margins for solicitors doing this work will become slimmer, and the risks and insurance premiums will become higher. And the numbers of those firms and individuals who reach a breaking point will go up…And firms who continue will have to take on larger caseloads to make the thing viable…and so the cycle perpetuates. Or perhaps it simply becomes impossible to do this sort of work without at some point being negligent?
Each part of the system is running, running, running… Judges, solicitors, barristers are exchanging emails late at night, on weekends, in the wee hours of the morning. Those frantic “alerting you to a cock up” emails from counsel to the judge on a Sunday night you see rehearsed in the judgment are familiar. I have written them myself (whilst chanting “f*ck f*ckity f*ck” under my breath to keep myself calm). If we but had time to breathe we would probably all do our jobs a lot better. Imposing wasted costs orders is no more than the beating of a big whacking stick to the rhythmic mantra “It can be done. It must be done. It will be done.” Don’t we all have collective responsibility to say “STOP. We CAN’T keep doing this?”
We are all suffering from exhaustion. We need a holiday, not a spoonful of cod liver oil and a smack on the arse. I include judges in that – this judgment is but a judicial howl at the moon. What the hell else are they supposed to do?
P.S. Please excuse any typos. I’m afraid I’ve had to prioritise other things than grammatical or syntactical perfection. I’m off to sit in my bed surrounded by the three lever arch files I need to read tonight, much of which is police disclosure I need to check. Oh, and the missing documents my solicitor sent me from her office today (I couldn’t face bringing home the fat one for Tuesday and the thin one (yay!) for Wednesday, so I’ll be reading them tomorrow).