Behind every great lawyer there is a woman – lugging an immense pile of court papers.
Those papers are known as the ‘court bundle’ – and since april of this year, there have been strenuous efforts to diminish the size of those bundles. Nobody is seriously concerned about the health of the impoverished junior who has to bring them to court every day; but the larger the bundle, the more people who have to read it and ensure they haven’t missed a salient point, then the more expensive the court costs.
After April 2014, a new practice direction was supposed to reduce those bundles to 350 pages. In effect – bullet points.
There have been some eye watering court costs in recent times. £920,000 in a divorce case between a market gardener and his wife over a property with an agricultural tie that was never going to be worth more than 2.9M no matter which way it was valued or revalued. Another £925,000 in a case which was only in the preliminary stages.
You could say that these people bring it on themselves – they have money, or at least assets, and if they wish to squander them on paying endless experts and lawyers to rake through their credit card statements to resolve civil disputes, so be it.
But what of people who don’t ‘bring it on themselves’? Surprisingly, I am not even speaking of those such as Dave Lee Travis or Michael Le Vell who have received horrendous legal bills as a result of allegations made against them of a sexual nature and been caught up in the ‘Yewtree’ whirlpool.
I am talking about people who don’t even realise or appreciate that they are involved in a court case – entirely innocent, utterly blameless individuals. Their numbers increase with monotonous regularity. They are those who have been judged to lack mental capacity and for whom decisions have to be made by the Court of Protection.
Two such young men this week – who, to put it crudely, don’t even know what day of the week it is, have incurred legal bills approaching three quarters of a million pounds – and neither of them would have been aware that they or their affairs were even having a ‘court outing’.
The Mental Capacity Act has dictated that the Court of Protection be brought into adjudicate when there is a difference of opinion between, say, the local authority and members of a person’s family over where they should live.
That can be for a variety of reasons. Perhaps the local authority wants to send Sonny Jim, as I shall call our fictitious client, to a remarkably cheap care home in the Outer Hebrides and his devoted parents are quite rightly complaining bitterly that this will affect his contact with them and thus his quality of life and demanding the court stop them doing so.
Sadly, you can also have the situation where Sonny Jim is seen as a valuable commodity by an unscrupulous relative; well aware that his needs are simple yet he comes accompanied by a raft of Disability Benefits, rights to a splendid new Land-rover on the Mobility allowance – and perhaps even extensive rebuilding and redecorating of the family home from substantial damages awarded if young Jim lost capacity as a result of provable negligence. Here you might find that it is the local authority who is complaining that the ‘unscrupulous relative’ is not looking after Jim properly and demanding that the court give them authority to rescue him from this situation.
Either way – Sonny Jim is a hostage to the lawyers – and he doesn’t even know it.
Yesterday, Mr Justice Jackson took the subtle judicial route of ‘blowing his top’ – and published an anonymised judgement concerning the costs and delays in these sort of cases.
In Case A, the proceedings lasted for 18 months. In round figures, the estimated legal costs were £140,000, of which about £60,000 fell on the local authority, £11,000 on a legally-aided family member, and £69,000 on the young man himself, paid from his damages.
In Case B, the proceedings lasted for five years. In round figures, the estimated legal costs were £530,000, of which about £169,000 fell on the local authority, £110,000 on a family member (who ran out of money after three years and represented himself thereafter), and £250,000 on the young man himself, paid for out of legal aid.
Each case therefore generated legal costs at a rate of approximately £9,000 per month. In Re PB  EWCOP 14 Mrs Justice Parker said:
“All those who practice in the Court of Protection must appreciate that those who represent the vulnerable who cannot give them capacitous instructions have a particular responsibility to ensure that the arguments addressed are proportionate and relevant to the issues, to the actual facts with which they are dealing rather than the theory, and to have regard to the public purse, court resources and other court users.”
The young man in case B is said to have a mental age of 8 – can you imagine the outcry if it took five years and half a million quid to decide where an eight year old should live? Can you imagine the outcry if his relative was financially ruined to the tune of £110,000 by lawyers – and then had to spend another two years appearing in court representing himself to resolve where this eight year old should live?
The young man in case A had earlier been awarded damages to improve the quality of his life – did anyone imagine he would have to spend almost £70,000 of his damages for a lawyer to argue interminably with the local authority as to where he should live?
Sir James Munby has said there has been a ‘fundamental change in the cultures of the family courts’. They are making strenuous efforts to limit costs in civil disputes.
It doesn’t seem to have permeated to the Court of Protection – of which Sir James Munby is now President – where lawyers continue to reenact Jarndyce v. Jarndyce untroubled by clients capable of putting a stop to their time-wasting antics.
About time it did.