The second guest blog comes from APIL's costs and funding group co-ordinator Gary Barker. Gary combines his time as a practising solicitor with being a freelance trainer and an assistant lecturer at the Open University.
We have an adversarial system in this country where the one with the best evidence and who is most organised wins. But if you do not follow the rules or court orders you can also be punished. This can mean anything from having to pay more costs to losing the case, unless you can persuade the court to let you off But the courts recently seem to be moving us more towards the continental inquisitorial system and in that system the parties have to co-operate with each other and the court to come to a solution.
In July the Court of Appeal considered three cases where parties had not followed the rules about submitting their budgets for costs to the court. The details of the three cases are not important but the Court of Appeal made a very important statement right at the end of their judgment that they did not expect to see many people excused from punishments. They gave two reasons for this, the first (understandably) was that they expected people to comply with the rules and court orders. The more surprising one is that they expected the parties to co-operate to solve any difficulties that arise.
The impact of this second statement could be very serious for the injured person. For example, if a defendant’s insurer does not comply with a court rule, such as providing an expert’s report on time, it becomes the duty of the victim to help the insurer out by agreeing a new deadline. This means that an insurer could manipulate the system to delay matters and put pressure on the victim by depriving them of their compensation for much longer. Many victims are in the position where their injuries mean that they are off work for a significant period of time and get into financial difficulties. Sometimes they are unable to pay their mortgage or other debts such as credit cards. This puts enormous pressure on the victim and can lead to them accepting a low offer of compensation in order to be able to make immediate payments. For many years insurers have tried to use this pressure to force victims into getting less compensation than they deserve. The courts now seem to be giving the insurers even more opportunities to perpetrate this injustice.
The result is that the victim and their solicitor may have to accept bad behaviour by the insurers. This risks the client feeling that the solicitor is not on their side and therefore affecting their relationship. It would be very unfortunate if the good working relationship between solicitors and clients was damaged by some general remarks by the Court of Appeal but that is the very real danger that has been created.
All of this makes it vital that clients provide all the information and paperwork that the solicitor needs as soon as they are asked, to avoid them falling into this trap. It also means that sometimes the solicitor will be doing things to help the defendant’s insurer that neither the solicitor nor their client are entirely happy with, but which the courts insist that they do.