Days in court

The writer Joan Didion observed that it was almost never in the interests of people she wrote about as a journalist to have her in their lives. The same might be said of the impact the inside of a courtroom has on many parties in civil cases. Being there is in the interests of very few of them. Civil litigation is drawn-out, expensive and stressful, and can involve a fair amount of dirty linen being aired in public – whether corporate or personal.

Those assumptions may well be right for disputes between large, represented companies. Each wave of major reforms ups the penalties for failure to follow diversion signs on the way to court.

But it can seem unsatisfactory for others, especially as we consider the ways costs sanctions for failure to settle work in concert with the principle of ‘proportionality’. Proportionality now trumps ‘justice’. And justice is measured by a single, clunky metric: money.

The Duke of Sussex’s case against Mirror Group Newspapers highlights some of the problems here. A money settlement, it seems, is not driving his decision to claim. But the resolution he says he seeks is only possible through the mechanism of a money claim, made against fierce incentives to seek or consider a settlement. It is a key reason why other newspaper hacking cases settled.

If the woes of this privileged claimant make this seem a weak example, consider how it plays out in medical negligence cases. ‘Is cash really justice?’ a friend who acts for claimants asks. When she questions clients on why they want to litigate, most say they want fault acknowledged and things to be made safer for others, as well as securing funds needed to ‘make life better’ in the context of harm caused by negligence. But as she says: ‘All I can really do is get you money – an apology or change in practice is rare.’ On ‘proportionality’, she is clear: ‘The amount of technical work you need to do is not less because the claim is worth less.’

I find it hard to disagree with her conclusion: ‘We need to wonder what justice is now – money seems to trump any need for acknowledging wrongdoing, or need for change, or even precedent setting.’