The Times has an interesting piece today by Frances Gibb on legal costs. Its peg is a mammoth report on civil litigation from Lord Justice Jackson, the Court of Appeal judge. Among many proposals to deal with the soaring cost of going to law is one to end the centuries-old principle that the loser pays. As Gibb writes:
This should not be regarded as untouchable, [Jackson LJ] concludes, even if “complete abolition” is not on the cards. But, pointing out that the rule does not apply in other areas of litigation (such as tribunals) he suggests that there may be distinct areas where it could be scrapped, such as collective actions, which “merits serious consideration”, or personal injury claims where the losing defendant should not expect to recover all his costs. “Loser pays is not the only option,” he says.
Remarkable stuff, but it brings to mind a perhaps apocryphal story from Blade’s early days in the law. An associate at a leading City firm was not making his paymasters as much money as they’d hoped, because he refused to allow his clients to litigate. “It’s just a waste of money,” he would tell them, “even if you win, you still lose.” He would then point out things like the shortfall on taxation of costs, to be paid by a victorious client, which could run into thousands. “Don’t bother going to court,” was his unfailing advice.
He wasn’t long in the litigation, but perhaps he was onto something.
“Even if you win, you still lose” – image courtesy of A.J. French.
Unfortunately, one of the problem areas is personal injury litigation where, through a combination of “no win, no fee” agreements and legal expenses insurance, generally a successful claimant will not have to pay anything, win or lose. They therefore have no interest in the way costs are incurred or the litigation is conducted.
A lawyer of Swordplay’s acquaintance finds himself in a fix.
“My teenage son is to be interviewed by the local constable,” he tells us. “He is alleged to have committed an offence.”
We gasp, for such seems the appropriate response, and then ask: is it serious?
“No, it is not,” our troubled legal friend tells us. “In the great scheme of things, my son’s alleged transgression is about as de minimis as they get.”
For a split second, we wonder if said teenage son is cognisant of lawyerly terms of art such as de minimis, but rapidly conclude that the answer to this question is not a sine qua non of further discourse. And so we press on. That sounds good, we say, relatively speaking, at least.
“Yes,” says the lawyer, “but I am at a loss as to what to do with him. Do I come down hard and ground him, or do I play the liberal card, or do I find a compromise?”
That depends, we aver.
“On what?” asks our man.
On whether you would prefer to deal with your son’s alleged offence as a lawyer, or as a father, or as a father who is a lawyer, or maybe even as a lawyer who is a father.
“I see your point,” says the lawyer. And then, as if to prove that there is no cure for recidivism, he says: “The offence is, after all, de minimis.”
Without prejudice, we add.
Pictured: something out of Kafka. Now there was a man who knew about the law. And had a tough old father, too.
We rarely enjoy pondering Max Mosley – the man, the sins, the legal action, what he stands for – but confess to a degree of grudging admiration for his tenacity in trying to change the law of privacy. As this story from the Independent has it, Mosley has lodged a request with the European Court of Human Rights in Strasbourg asking that, by law, journalists must inform the subject of a story of the private details they intend to print, prior to publication.
We suspect the motor racing man would never have thought it, but he would appear to have an unlikely bedfellow in a certain England footballer. Step forward, Wayne Rooney, who would presumably put his name to Mosley’s petition.
Pictured courtesy of NashvilleScene: some bedfellows are stranger than fiction.
Woe betide those who freelance and fail to return a call.
We say this upon hearing of a normally prolific freelance journalist who picked up a voicemail from an editor at one of the nationals on Tuesday afternoon. Please call us, was the message, and it could mean just one thing – a commission.
Our hero’s habitual practice is to return such calls as soon as is reasonably practicable, as m’learned friends might put it. In practice, that would habitually mean within a couple of hours. Most atypically, and for reasons we have yet to fathom, our man failed to call back for a full 24 hours.
By then, said editor had looked elsewhere. One of our man’s competitors had the gig, an interesting piece about cricket and the law, one which might just be in The Times today and which, we assume, asks whether the Pakistan cricket team have been caught out (in the legal sense, you understand).
We make no judgement on the no ball scandal, save to say that it is a scandal, but in another sense the moral is clear: in the fast-paced world of modern media, he who hesitates is lost.
Pictured courtesy of PrintedClothing.com: a fast-selling shirt.
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A cricket ground is a flat piece of earth with some buildings around it.
Richie Benaud, 1930 – present, cricket player and commentator.