Sir Alan Ward's final case before retiring was Colin Wright v Michael Wright Supplies Ltd and Wright Turner Investments Ltd: "a depressing case that highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person".
The background
Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Briefly, Colin Wright had founded the first appellant company, in which he worked with Nigel Turner of the second appellant company. Eventually CW decided to sell the business to Turner. Later, a dispute arose in relation to outstanding payments found at trial to be owed to CW. Turner had been willing to consider mediation but CW would not hear of it.
The proceedings were listed for trial. The judge was minded to dispose of the case by way of written submissions and so a draft judgment was prepared. There were some aspects of the evidence on which he required an explanation but again, he was happy to accept written explanations. Turner however, would go on to use this as a reason to justify his request for an oral hearing. The trial judge resisted this:
"The only practical problem is that the parties still, I am afraid, seem to have a rather more tortured way of looking at documents than judges have...."Deciding the case on the papers was clearly more economical than a full hearing. Bearing in mind that the matter would go on to be adjourned for a third time, it is unsurprising that the trial judge was mindful of the escalating costs. Sadly, by the time the appeal appeal was over, any value in the litigation had dissipated. In the words of Sir Alan:
"I very much doubt whether there is any money left in the pot to make it worth fighting over. Mediation is the obvious way in which to explore these matters and allow the parties to move on before they cripple themselves with more debt. If they wish to avail of this Court's mediation service, they only have to ask for it."The challenge
It was against this background that Sir Alan highlighted two of the challenges posed by litigants in person:
"The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. [The trial judge] did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts."The second problem stems from the fact that more cases will go to trial because, as this case showed, in the absence of representation, it is even more difficult to persuade intransigent parties to consider mediation:
" The raison d'être (or do I simply mean excuse?) of the Ministry of Justice for withdrawing legal aid from swathes of litigation is that mediation is a proper alternative which should be tried and exhausted before finally resorting to a trial of the issues. I heartily agree with the aspiration and there are many judgments of mine saying so. But the rationale remains a pious hope when parties are unwilling even to try mediation. "
In the words of Sir Alan, now in full flow:
" You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable."
The Twist
It is ironic that in condemning the future for litigants in person, the appeal was allowed after a fundamental error of law by the trial judge. In eventually giving his judgment, he described as "invaluable" the evidence of a witness that Turner wanted to call live. That witness actually supported Turner's case and concluded that the he owed nothing to the respondent. Inexplicably, the trial judge relied on his witness statement in giving judgment for Mr Wright.
That said, you cannot help but think if the parties had been represented, they might have found their way to mediation. Even if it had gone to trial, it would have been more efficiently constructed and the points of dispute set out clearly from the beginning. Even without lawyers, running the courts is expensive and it gets a whole lot more costly when cases are perpetually adjourned, assuming they don't collapse, and where the judge, instead of just adjudicating on a case is duty-bound, to micromanage cases by advising litigants on the appropriate conduct of their cases whilst maintaining their independence. These arguments are not new. The lobby against these cuts has been making them and more since the proposals now contained in LAPSO were first mooted. Cutting access to justice in the name of austerity is a false economy.
What is unusual, is that they have now been echoed from the bench. Indeed, perhaps not since the separate opinion of Judge Bello in Al-Skeini v UK (in which he devastatingly criticised the double standard of the UK government in purporting to invade Iraq in defence of the rule of law only to resist the imposition of its obligations under the European Convention on Human Rights to its actions there) have we heard such strongly held views.
Again however, Judge Bonello was about to retire. I am a great believer in the constitutional separation of powers but I can't help but wonder if, on fundamental aspects of the rule of law, like the access to justice,or secret courts, judges should speak out more often. This is something for which Lord Neuberger drew some criticism, following his recent appointment as President of the Supreme Court. Nevertheless, the ultimate duty of the judiciary is to defend the rule of law, even if this means being drawn into the political arena, to some degree. As Lord Hope observed in A-G v Jackson [2005] UKHL 56:
"[104]....The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based."
Indeed, it is on that basis that Lord Steyn conceived of the possibility, in "exceptional circumstances", that the Supreme Court may even be called upon to strike down an Act of Parliament for example, involving an attempt to abolish judicial review or the ordinary role of the courts.
Lord Neuberger's comments notwithstanding, the impending passage of the Justice and Security Bill, arguably only (lamentably) reinforces the idealism of such theories. Even so, as with Judge Bonello, the force of Sir Alan's comments remains:
"We may have to accept that we live in austere times but....I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid."After the Age of Austerity, it will take a reformation of resurrectional proportions for the justice system to regain that strength.
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