Fit for Purpose?

arbitration

 

Going to court is not a simple task. Nor is it made easy.

With that in mind, I have put together two scenarios – to ask one question: are our courts fit for purpose?

Scenario 1

A client’s typical day in court starts shortly after dawn, with the journey to the court centre. As courts sit in town and city centres, locating the building may be a small problem, but finding parking will be treacherous. Since there has been no planning requirement for the provision of court parking, bring plenty of loose change, and be prepared to dash back to your car at lunch time to feed a meter.

The next deadline is at 9.00 am to meet with your advocate.

Allow time to progress through security. Some court centres sport a queue that snakes back through the rain. Join the end of this, but remember to bring your umbrella. Make sure that you leave anything metal behind, and do not have a camera – for some courts may even confiscate your phone. The bigger your bag, the longer the task, so travel light.

Once access to the court centre is achieved, approach the large notice board of cases, listed by court or case number – rather than alphabetically. Deciphering the list is an art, honed over years of practice, so you may find this daunting. You will need your glasses for the small print. But do not rely on the list. Your case may not be there, and if it is, it may be moved. After all, the list is prepared for the listing officer rather than the court users.

The court building is on several floors, with courts arranged randomly. Court 1 may not be where you think it should be. Court 14 could be on any floor, or even between floors. You may choose to head for the restaurant – but beware – the metal seats are challengingly fixed to the floor, and the fare may be reminiscent of prison food.

Finding your advocate is the next difficulty. If counsel has been instructed on your behalf, you will probably meet your barrister for the first time at court. The art is to locate a court where you believe your case is listed, and to wait expectantly. If the barrister has other cases that day, your wait may be long. If not, question how he or she can make a living on the basis of your fee.

Having met with your barrister comes the next challenge – that of finding a room in which to confer. Pressing through a sea of clients and lawyers, you will peer into room after room, only to find that you end up in a corridor. Yes, conference facilities are not what you would expect.

If you have the time and space to speak with your advocate before the hearing, be prepared for him or her to disappear and re-appear – to speak to the ‘other side’ or to finish another case in another court. This is normal. Bring a book to read. Beware the coffee machine – you may need your change for top-up parking, and you certainly will not want to undertake the tortuous journey to find the toilets.

Of course, this is all to be worthwhile if your case is dealt with at this visit. When your advocate returns to tell you that the court has risen for lunch, be not too disappointed. But if the list proves too long, the judge has to leave before the close of business, or your case does not have an allocated judge, then your case may not be reached at all. By way of consolation, you will be well practised for the next time.

Scenario 2

Both you and the ‘other side’ have opted for a private court hearing (an arbitration). When your solicitors arranged this they even gave you a choice of judge. You were able to glance through a glossy brochure or check them out on line. If your case is big enough, you may even get to meet the judge beforehand.

The location for your arbitration was a matter of choice – perhaps your solicitors’ board room with the palms and recessed lighting. Your car safely in the car park, you take the lift to the coffee lounge where you greet your chosen barrister and tidy up the last minute details of your case.

The arbitration starts on time, with introductions and clear ground rules explained. Most of what you wanted to say has been written down in advance, and the arbitrator asks you a few questions for clarification. When breaks are needed, they are taken. Everything is covered, and you conclude the day in good time to miss the traffic. At your request, a written judgment will be emailed to you and your solicitor, together with an award where appropriate.

~~~~~~

In my previous blog I raised the prospect of the privatisation of the public court system – hiving them off to the public sector. Sarah Vine of the Guardian may have got it almost right, save that the Ministry of Justice needs to do nothing more than it is currently doing – namely scenario 1: running courts that are not fit for purpose.

With the Arbitration Act 1996, and the barrage of judicial support that is given to arbitration awards, it seems more likely that clients – in the civil, commercial and family sectors – will simply vote with their feet and take the better option.

Advertisements

5 comments on “Fit for Purpose?

  1. Liz says:

    No mention of cost comparison…..?

  2. Liz. You are right to raise the issue of cost. It can be quite a complicated issue. A civil or commercial case through the courts may involve multiple pre-trial hearings. This can cost dearly in both time, and attendance by advocates. In an arbitral process, pre-hearings are exceptional, and case management is effected speedily on line by the arbitrator. The same can apply to financial remedy or TOLATA cases. Clearly, in a private arbitration there is no court issue fee, but the arbitrator charges for their work. If parties could simply go to court without pre-hearings or delay, I guess the balance would favour a state system. In the real world of court applications and adjournments, paying an arbitrator has to be preferable.

  3. […] Readers will be familiar with my preoccupation with alternative dispute resolution – especially if you flash back to my postings here – ‘Privatised Courts – where to, where from‘ and ‘Fit for Purpose‘. […]

  4. […] starting in May 2013 with Privatised Courts – where to, where from? The September blog Fit For Purpose, addressing the idea of private court hearings, proved very popular – to the point that it […]

  5. […] You don’t need to be clairvoyant to detect the future for financial remedy cases. With unacceptably escalating costs in adversarial court processes, coupled with the possibility of open justice through public courts, we are unlikely to continue to litigate many financial cases as we have done in the past. The alternatives may not be as I described in Solving Disputes, but there is a lot to commend the concept of private resolution. […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s