Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
The government overhaul of legal aid (public funding) came into force on 1 April 2013* and is due to affect the entire justice system. Criminal barristers have begun striking, court staff are already striking and, with the family court system at breaking point, litigation is becoming even more of a last resort for privately paying clients.
Legal aid is still available for family mediation; but it no longer covers any legal fees for financial cases (including divorce) or private children law matters (such as residence/contact disputes) unless there is an element of domestic violence. The courts will soon become (even more) swamped with people who simply cannot afford lawyers without legal aid. More people will be forced to represent themselves and become “litigants in person” and they will inevitably take up more of the courts’ time. The purported costs savings to the legal aid budget will no doubt be dwarfed by the costs of an increased workload for the courts, with cases that take longer to conclude without lawyers to focus the issues. Court staff will also inevitably have to spend more time dealing with enquiries from litigants in person, which is not their role or responsibility.
Another sting for private clients is that legal bills can be unavoidably inflated by having a litigant in person on the other side and it is very difficult to recover any costs in family proceedings. Lawyers will have to become much better at sensitively (and cost effectively) dealing with parties who are likely to be unaware of the law and procedure and inherently emotionally involved.
The main family court in London, the Principal Registry of the Family Division (our local court), is already straining under an insurmountable caseload. There are currently not enough Judges, which means cases frequently end up on the dreaded “floating list” without an allocated Judge (even where the hearing was listed many months before). The best outcome of this is a short wait and a hearing before a Judge who has probably had insufficient time to read all of the papers. The worst case scenario is that you spend all day at court waiting, don’t get before a Judge, but still have to bear the unavoidable costs of your barrister and solicitor’s attendance.
Yes, this time sometimes gives parties the opportunity they need to negotiate; but the government cannot justify crippling the court system because it encourages people to avoid litigation. Our fundamental rights to a fair trial demand that the courts and judges be accessible, albeit as a last resort, to determine difficult cases. Where positions are entrenched and the case is crying out for judicial intervention, the costs consequences can be staggeringly unfair.
Litigation has always been a risky business. However, clients are now having to weigh up not only the risks of being unsuccessful, but also the risks of not being allocated a Judge and wasting costs on a hearing that has to be adjourned. As the courts become a potential costs sinkhole, mediation and alternatives to litigation are becoming increasingly attractive. These alternatives can put the parties in control of the venue and the timetable and can sometimes also be more cost effective.
It is vital to consider the suitability of these alternatives before issuing court proceedings. However, it is disappointing that short-sighted legislation may result in some clients being forced to make a commercial decision rather than one based on the merits of their case.
*The following table summarises the implications for family proceedings:
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