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) [2016] 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).
Noel “never (sic) before” Arnold 😉
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 [1994] 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?
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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).
An excellent piece. Can’t say the same about the judgment.
The points you make are all extremely valid. I’d be interested to know what the learned judge’s rationale was here. Who does he really think this is helping in the long run? Hard pressed, publicly funded solicitors?
As is noted in the blog, margins are tight for these type of firms. Practice like this is sadly common place, so are we all to expect wasted costs flying around courts up and down the country?
What really gets my goat is this: when HMCTS, or, heaven forbid, the judiciary gets something wrong, there’s no comeback. I was recently instructed for a father in a one day fact-finding hearing in a private law, DV case. My instructing solicitors had submitted the court bundle to the family court five working days prior to the hearing. But as the listing office had moved the hearing to another hearing centre, no one in the court office engaged brain sufficiently to actually send the bundle out.
I arrive, client in tow, to find a DJ with no bundle. Case adjourned. My client is out of pocket, no apology, no accountability from HMCTS.
Turning back to the instant case, an argument could easily be made that the judge should have spotted the missing documents at the interim hearing. I note that’s not mentioned in the judgment. Probably because it’s thought that DJs/CJs are far too busy dealing with other cases to notice such things. It’s a fair point. But it just goes to show its one rule for them, and another for us.
Injustice remains in the Family Justice system. It’s just more subtle than we often think.
I think you can make a complaint but I don’t know if HMCTS ever pay out compensation.
I have known it done and it’s worth a pop.
As for the metaphors they are better mixed. Remember the telegram (this bring a very old joke) announcing the death of the old nurse which ran HAND THAT ROCKED THE CRADLE KICKED THE BUCKET!
Have you heard of competition, commercial pressure, Moore’s Law (https://en.wikipedia.org/wiki/Moore%27s_law). This is what happens in society, time moves on, things change and you move with the times or get out of the business. What you are saying is that these solicitors and barristers, who let’s remember are qualified, regulated and insured, are regularly acting in a negligent manner. We’re not dealing with a faulty plumbing job here, we’re dealing with people’s lives and more importantly the lives of children.
Let’s remember in this case the disclosure was looked and the omissions were noticed, it just wasn’t looked at in a timely manner. That’s not because people have too much work to do, it’s because they aren’t managing their time properly and doing things by the time they need to be done. When the disclosure comes in it needs to be checked with a couple of days, not the night before the hearing.
If you’re unable to do the job because you’re overworked, then take on less work and spend more time on each case so you can do it properly. If you’re not giving each case the time it requires, and I think that’s what you’re saying, then you’re not doing the job you’re contracted to do, you’re not meeting the necessary professional standards and, because it’s legal aid, you’re defrauding the tax payer.
Don’t take on work you can’t do, it’s negligent and harms children. Solicitors and barristers should not blame someone else, they are responsible professionals. If they know they can’t do the job, but they take it on anyway that is negligent.
I don’t think it is that simple. I regularly block out diary days to ensure I have adequate prep time – but then the papers don’t arrive until the night before anyway. Solicitors don’t have quite the same luxury in a way, because they operate in firms which have billing targets etc. There are firms and individuals who have said we can’t do this profitably or we don’t think its worth the candle, and more and more are likely to do so as time goes on. This is no help to anyone.
I remain cross when other professionals mess up, and I call them to account. Sometimes, but fortunately not often, I am one of those who has messed up – this is part of human frailty not laziness. And yes, disclosure should be looked at in advance not the night before. Personally I work continuously each day, on evenings and weekends and most of my colleagues do the same – we get to each task as quickly as we can, prioritising by urgency. When everyone is up against it one person’s delay affects another’s ability to manage their time and meet their deadlines – its a vicious circle. The question is how we enable professionals to do that and I don’t think the current system is encouraging or permitting it. But I think when the problem becomes widespread we have to ask whether it is actually possible to reliably do everything to the required standard. The current system operates on such narrow margins of tolerance that one comparatively small error can have catastrophic knock on effects throughout a case and a knock on effect on other cases too – there is no slack to give a little for error.
Allow me to offer an interpretation of what you say:
“but then the papers don’t arrive until the night before anyway.” – the instructing solicitor has failed to provide documents in good time. Realistically how much of the paperwork is available long before the day of the hearing and how much of this is because solicitors are leaving things to the last minute because they know you won’t read the paperwork before the night before the hearing?
“There are firms and individuals who have said we can’t do this profitably” – then they will go out of business and the ones who can will survive. If there’s nobody to do the work at the rate offered the Government will have to offer more, that’s commercial reality. Businesses who don’t change with the times and become more efficient will go out of business.
“Personally I work continuously each day, on evenings and weekends and most of my colleagues do the same” – you and your colleagues are taking on too much work.
“we get to each task as quickly as we can, prioritising by urgency” – you’re fire fighting.
“But I think when the problem becomes widespread we have to ask whether it is actually possible to reliably do everything to the required standard.” – Yes it is. You will have to get better at doing it or take on less work and do it properly.
“there is no slack to give a little for error” – You’ve taken on too much work and can’t competently complete it all.
I will say again that you have contracted to do work to the required professional standard. If you can’t do that you are in breach of contract. It’s no good blaming others, you accepted the work, you are responsible.
If other professionals, who are qualified, regulated and insured, fail to do their professional duty, then they need to be reported to the regulator. How many solicitors have you reported to the SRA for failing in their professional duty? Not many I suspect.
The legal profession is responsible for its conduct and ethics. If it fails children it is failing the most vulnerable in society. There is no excuse for this, if you don’t like the heat, get out of the kitchen.
I work late each night to ensure I do what is required and I achieve that to the best of my ability. Sadly that has become the expectation of the system. The legal system has always operated on the basis of personal responsibility for one’s workload. I argue for sanctions against those who do not comply, I am frank with my instructing solicitors and clients where a problem is of their own making (and where appropriate will concede a failure on mine or the part of my solicitor). I argue for more time for my clients where another party has delivered something late. I concede more time (subject to instructions) where it is necessary to ensure fairness for all parties. I would not hesitate to report a solicitor or barrister if I felt it appropriate though I have never had to do so. Usually the best way to deal with non-compliance is at a hearing in court, when the non-compliance can (hopefully) be remedied. People carry on doing this work because there is a need for it to be done and they want to help. This week I have dealt with a man who is unable to find a solicitor willing to take on his representation at a committal hearing. Would you have more firms quit this work and have bigger legal aid deserts? Would you have parties unrepresented? The system is very very imperfect but I still consider I can do more good than harm by working my arse off for my clients and in an attempt to further the overriding objective. But I will have to draw a line at some point or my health will go off a cliff. These are conversations we are having with ourselves and one another on a daily basis.
I ratherdoubt HHJ Bellamy had power to make an order for wasted costs on this one – wasted costs are only ordered on application of one party against another (Senior Courts Act 1981 s 51(7): eg his order at [84] doesn’t make sense). Costs can be disallowed (s 51(6)); but not where a lawyer has been ‘negligent’ (CPR 1998 r 44.11(1)(a)).
I did wonder that but have not had time to look it up.
This is such an important article and, as ever, expressed with measured eloquence. It was always obvious (wasn’t it?) that pushing for structural change and faster case throughput whilst simultaneously reducing all relevant resources would lead to the round objects falling off the charabanc.
It is a commonplace of business to underestimate the resources needed to effect and manage change. In relation to the Family Justice ‘revolution’ there is scant evidence that resources were considered at all, it being assumed that the emotional and physical reserves of the profession were sufficient to cope.
I hope this brilliant article is read and re-read not only by the senior judiciary but also by officials and politicians.
Such naïve misplaced optimism explains why I am still a family lawyer.
Thanks Lucy.
Be nice if solicitors and barristers actually fought for their clients but most tell them “go along with social services” resulting in loss of children and a fat fee for a useless lawyer !
A family barrister (10 years in the family courts) M.F explained “My clients were like lambs to the slaughter”
You know what Ian? It’s like a broken record. I’ve spent all week working my arse off to sort cases out so parents can get fair decisions – not once have I capitulated or advised my client to do so. Not a single advocate I’ve encountered has done so either. You have one family barrister whose quote you roll out again and again and again. It’s rubbish. There may be a few lawyers who are not up to scratch or lazy or who cave to easily – that would be inevitable in any profession – but to peddle the idea that the profession acts routinely against the interests of clients is dangerous because it makes parents unable to listen to advice when they really need to hear it. You should be ashamed of yourself. If a parent has a lawyer who does not listen or who does not act on instructions they should sack them and find another. But they NEED a lawyer and they need to listen to advice.
Unfortunately LUCY nearly every parent who contacts me tells the same tale.
My solicitor/barrister told me to accept the interim care order/adoption placement and go along with social services. Yes it is like a broken record when 4 or five parents /day tell me that story and ask for my advice . Naturally I advise such parents to represent themselves as however nervous or ignorant they are about courts and the law they must still be better off pleading to the judge without a treacherous enemy in their camp.
Yes once in a while they do find a lawyer who fights for them but oh so very very rarely does that happen…………..
Yes I’m sure that sending your “clients” off alone to court to tell the judge that their lawyer is a “treacherous enemy”, whilst failing to deal with the evidence against them or to think through how they might demonstrate change, works absolute wonders. Of course you get 4 or 5 a day – you are out there touting for them with your evil corrupt family courts stuff. What those parents need is to be helped to go back to their lawyer and to articulate that they didn’t feel their instructions were being listened to, or that they felt under pressure, or that they have simply changed their mind. Some lawyers deserve to be sacked – but often a parent’s instructions and insight are highly variable, and it is no surprise if their account of the circumstances of removal is not entirely objective. But because you start from the proposition that we are all happy to sit on our backsides and encourage our clients to just give their children away you make no attempt to identify help that is appropriate to the circumstances of the individual parent / case. Most parents would benefit from help to re-engage with lawyers who are having to tell them difficult things.
Your last sentence sums up what these cases are all about, once called closed door cases, this meant if you did not follow the instructions as you have stated above the doors closed on the case by every other solicitor the parents contacted, and parents were ostrasiced into the wilderness, the cogs of injustice still turned and the lose, lose system still survived. now possibly the largest ‘Industry’ in the UK
I don’t think that’s what my last sentence says at all. It’s really important that parents find the right lawyer who can take time with them, to explain things, to build trust, to find out what their case is really all about. There are some parents who are sadly just unable to maintain a relationship with a solicitor and who go through them again and again either sacking or being sacked. Sometimes it is entirely right for a parent to sack a solicitor who is not doing their job properly – but once it becomes a pattern it is often a pretty good indicator that the client probably finds it difficult to understand that one of the ways lawyers assist clients includes the giving of difficult advice so informed decisions can be made. It is natural to confuse unwelcome advice with a lawyer not being “on your side” or not fighting for you – it often helps to remind clients that what I say in private is private and it is safe and necessary to talk about the weaknesses in the case – but what I say in court for them is where we pull out our strongest points. And that I can do that better if I properly understand the weaknesses – prevents me putting my foot in it.
Wait, possibly got wires crossed CB – not sure if you were replying to me at all!
A friend of mine today attended court 300 miles from her home with her autistic son to defend an application from a former partner. The hearing was, as far as she knew, listed for next week but over the bank holiday weekend she received an order from the DJ refusing her application to have the hearing moved. A hearing today was mentioned in passing. Turns out that the application had been expedited at the father’s request but the court had notified her at an old address and had not bothered to tell Cafcass at all. Through some industrious last minute phone calls and calling in a number of favours, she was able to get herself and a Cafcass worker to the hearing and the whole thing was resolved there and then.
Presumably a Saved Costs Order will be winging its way to her in the mail. Right?