There are very little things in this life I cannot afford and patience is one of them.” – Larry Hagman
We are living in an impatient world, so much so that you may already have given up reading this article! Research into the limits of British patience found we will snap after even a short delay in service. A spokesman said: “It’s interesting to see the limits in the various scenarios and how strong British patience really is and we live in an age where things move fast. The average person expects good, reliable service quicker than ever before and the results show expectations are reasonable. Frustration kicks in when there’s a lack of communication or poor processes.”
Litigation is not immune from this demand, even though litigation processes are still glacial by comparison and there is a lack of adoption of new technology. Lawyers must account for every minute if their time and meet time and fees targets. Even before litigation is commenced, the parties have to comply with the pre-action protocols, which can include the need to send a formal notification of claim letter and letter of claim, to be followed by a period of 28 days for the defendant to respond.
Once litigation starts, a litigated case can still take a long time to go to trial, but the majority of cases are settled before they get that far.
The Ministry of Justice recently announced its statistics for April – June 2014 on the Court Service Civil (excluding family) cases. During this period the Courts dealt with 370,700 new claims (13% lower than last quarter) and 11,100 hearings or trials (6% lower than last quarter). Historically, between 3.0% and 3.5% of all claims issued have gone to hearing or trial. There was an average of 54 weeks between a claim being issued and the claim going to trial. The time between issue and the claim going to trial rose between 2008 and 2012 and has fluctuated between 54 and 61 weeks over the last two years.
For every trial listed there will have been a case management stage, although many will have been conducted on paper, rather than at a hearing. Parties are increasingly questioning the value of having directions set to take a case to trial and a costs management hearing, the instruction of experts, disclosure, and exchange of witness statements when the parties are unlikely to see the inside of the Court room.
In the County Court it can take weeks to get a hearing listed and quite often by the time of a case management conference, the directions submitted by the parties for consideration are already out of date. Even communicating with the Courts can be a laborious, time consuming process.
There is a danger that the traditional Court system will fall further behind, despite promised investment in IT and infrastructure. Now the Ministry of Justice has announced that it is adopting a proposal to introduce “enhanced” Court fees, whereby parties pay more for the Courts to deal with their claim than their case actually costs, to subsidise the system as a whole and a funding gap. Litigants will have to pay 5% of the value of their claim (for claims over £10,000), capped at £5,000. It is also proposed to increase the Court fees for interim hearings. So, not only is the Court process slow and wasteful of time and resources, it is going to become even costlier. There is a risk that hard pressed litigants will be priced out of the Courts. The Courts do not have a monopoly in relation to Court services as there are cheaper alternatives which litigants are bound to explore, according to the laws of the free market and supply and demand. The signs are that people are increasingly turning to ADR to resolve disputes. This will increase with the implementation of the ADR/ODR Directive, which provides for ADR to be available to consumers in dispute with businesses. Consumers and litigants alike want their complaints to be dealt with quickly and cost effectively. Recently new adjudication and arbitration schemes are being launched to deal with professional negligence and personal injury claims, but with senior barristers as adjudicators and arbitrators, this is still a costly process and the parties do not control the outcome. Mediation is preferred, as being cheaper and giving the parties back their control. This is where Promediate comes in, offering an alternative to the delays and frustration of the Court system.