In the Gazette we see another article explaining how important it is that parties to litigation take positive steps in alternative dispute resolution or risk consequences in costs.
Is it not time for courts to return to the business of delivering justice for those who seek it, rather than constantly trying to palm off litigants into some form of process that will inevitably involve fudge and compromise? ADR is available. We all know that and are more than capable of advising clients on its merits. We do not need judges to wag fingers at us and point us in that direction.
We are reaching a situation where, rather than risk the costs consequences of refusing mediation and the aggravation of having to argue Halsey factors, it will be simpler to just go through the motions, tick the box and spend a sum of client money on ADR to get it out of the way and press on with seeking justice. Any party has the option to concede defeat at any time. If they choose to go to trial and lose, why should they not bear the costs?
If courts are there to deliver justice this would be better achieved by providing an efficient service. A CMC in Leeds in January produced only one outcome – the transfer to Bristol. The TCC in Bristol has now listed a further CMC for 5 June. A five-month delay purely as a consequence of court administration.
The overriding objective would be better served if courts stopped worrying about costs budgeting, ADR and so forth and focused on delivering an efficient service bringing cases swiftly to trial. In my first 20 years of practice I only came across a costs draftsman two or three times.
Now we have them camped in the office on an almost permanent basis preparing costs budgets at great (and in most cases wasted) expense to clients.
Michael R Watson, Shulmans, Huddersfield
