‘Principled,
timely and vital’
Philippe
Sands
‘Accessible,
forensic and breathtakingly humane’
Shami Chakrabarti
WITH
THE LAW ON OUR SIDE
Also by Brenda Hale
Mental Health Law
Parents and Children
The Family, Law and Society: Cases and Materials (with David Pearl)
Women and the Law (with Susan Atkins)
From the Test-tube to the Coffin, Choice and Regulation in Private Life Spider Woman
WITH THE LAW ON OUR SIDE
HOW THE LAW WORKS FOR EVERYONE AND HOW WE CAN MAKE IT WORK BETTER
BRENDA HALE
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To the late, lamented Julian, a fearless fighter for right and justice
PART THREE: MAKING LAW FOR EVERYONE 201
Introduction 203
15 Making Law in the Courts 209
16 Making Law in Government 231
17 Making Law in Parliament 244
Afterthoughts 265
Notes 267
Acknowledgements 271
Index 273
Forethoughts
What are governments for? To run the country of course. What should we ask them to do for us? There are all sorts of things we might want them to do for us, such as provide us with education, healthcare, welfare benefits, essential infrastructure and environmental protection. But these are all relatively recent wants. There are two things which throughout history we have wanted and needed governments to do. The first is the defence of the realm – to keep us safe from any enemies who might want to attack us and take us over. The last time this succeeded was in 1066 when the Normans conquered England. Since then our governments have been pretty successful in keeping our enemies at bay, albeit at great cost and often with the help of our friends.
But what is the second thing that any government must do? It must keep the peace at home. It must have a system of laws which govern how people should behave towards one another. At its most basic, this means that people should not harm one another and should keep the promises they have made to one another. And there must be a justice system to enforce those laws. Where a person has been harmed or a promise has not been kept, there must be a remedy against the person who has done the harm or who has broken the promise. Sometimes the remedy is compensation – reparation for what the person wronged has suffered. Sometimes it is punishment – unpleasant consequences for the person who has done the wrong. And sometimes it is both.
We have had laws and a justice system since long before the Norman Conquest. But these days it can feel as if the government has forgotten how important they both are. It likes getting Parliament to make new laws to solve new problems. But it neglects the machinery necessary to make them work. The justice system has been starved of the resources
it needs to do the job which we all need it to do. This is true throughout the justice system but it tends to be the criminal justice system which hits the headlines. The task of the police is to prevent and detect crime. This has become more and more complicated in modern times. The resources available to the police have not only not kept pace with the demand but have been cut back. The task of the criminal courts is to decide who has committed a crime and to punish those who have. But many of the local courts which used to do this quickly and cheaply have been closed down. There is a shortage of lawyers and staff to work in the courts which are open. We need lawyers, both to prosecute and to defend. But even when the courts could sit, the numbers of days when they are allowed to do so have been restricted. Huge backlogs have built up, causing delays and cancellations. The prison and probation services have not been properly funded to reform and rehabilitate as well as to punish. There are not even enough prison places to accommodate all the people sent to prison. This is partly because of the delays but mainly because more and more offenders are being sent to prison and their sentences have been getting longer and longer. The Government has set up an Independent Sentencing Review to see what might be done about it. No doubt there are savings which could be made, ways in which the system could be more efficient. But saving money in one place can lead to spending a lot more money somewhere else.
And that is only the criminal justice system. But there is much more to the law than that. There is the civil justice system which provides compensation for people who have been harmed or where promises have not been kept. There is the family justice system which decides what should happen to the family’s children, property and finances when things go wrong and how to protect the victims of abuse and neglect within the family. There is the public law system which regulates every aspect of governmental activity in the modern State – deciding what welfare benefits a person is entitled to, where a child should go to school, whether a foreigner should be allowed to stay in the country, whether a person with mental health issues should be kept in hospital, what taxes a person or enterprise should pay, and above all whether a public authority of any kind has acted within the powers that the law has given it, and whether a public authority has violated a person’s fundamental human rights.
These last two issues are the most important. It is said that we believe in the rule of law in this country. The rule of law is a twoway street. It means that we, the people, must abide by the law and have remedies against those who do us wrong. But it also means that the government – those in charge – must abide by the law. Their powers are limited by the law and they cannot act outside the powers which the law has given them. If they do, their actions can be challenged in the courts. One of the laws which limits their powers is the Human Rights Act 1998. Public authorities of any kind – including government ministers – cannot act in a way which is incompatible with fundamental human rights. Anyone whose fundamental rights have been violated has a remedy. Thus, for example, a person who has been wrongly deprived of his liberty can be set free; a person who is accused of crime or is involved in a civil or family dispute is entitled to a fair trial before an independent court; no one should be held in slavery or servitude or subjected to torture or other inhuman or degrading treatment or punishment.
Yet it seems that these vital principles are in danger. Government ministers have threatened to disobey court orders which they do not like. They have promoted laws to restrict the rights of people to complain that government actions are unlawful. They have threatened to repeal or restrict the Human Rights Act. They have promoted laws which restrict the fundamental human rights of people they do not like. They have promoted laws which are inconsistent with the international treaties to which the United Kingdom is a party and thus legally obliged to observe. They have vilified the lawyers who are trying to protect the rights of people they do not like. In short, they seem to have forgotten that the rule of law is a two-way street.
These are vital issues which matter to each and every one of us. We may be lucky enough not ever to be accused of, or be the victim of, a criminal offence. But if we are caught up in the criminal justice system, we want the matter dealt with as quickly and as fairly as it can be, by conscientious police, prosecutors and courts. And we are all likely to have to pay taxes and to be entitled to claim a State retirement pension. We may very well be involved in road accidents, whether serious or minor. We may very well have disputes with our employers, our landlords or our mortgage providers. If we
run a business, we may have problems enforcing the debts we are owed. If we are consumers, we may have claims for compensation for bad service or faulty products. If we have family relationships of any kind – and the vast majority of us do – we may run into difficulties which we cannot solve for ourselves. If we are sick or disabled, we will want to have our basic needs met and with basic humanity. And we all deserve to be treated equally – not to be treated less well than other people by the providers of work, accommodation, education, goods or services of any kind, because of something we can do nothing about – such as our sex or our race.
This means that we should all care about the law and the justice system. They are there to do things for us as well as to us. We cannot do without them. They are not just a nice-to-have. They are essential to our functioning and to our well-being as a community and a country. But this can so easily be forgotten – by anyone who is not already part of the system or willy-nilly involved with it, and even by the politicians whose job it is to decide upon policies and priorities. It is shocking that the justice system is not protected in the same way as health and education when public spending priorities are decided. It is shocking that this could be because we do not care about the justice system in the way that we care about health and education, because we cannot see what it has to do with us. Out of sight and out of mind unless we are currently involved.
This is a book which tries to put across why the law and the justice system are important to each and every one of us – why, contrary to popular belief, they are indeed on our side. The first part takes a look at the justice system. I used to be a judge and so I thought I knew how the justice system works. But it always helps to be up to date. So I have been on a little tour, visiting all kinds of courts and tribunals from the lowly benefits tribunals and magistrates’ courts to the lofty heights of the Royal Courts of Justice and the Old Bailey, to see what everyday life is like there – to see what kinds of cases come up on a random day and how they are dealt with, to see what all parts of the justice system are like in practice. I tell the stories of what goes on there, stories which will illustrate why the law and the justice system matter to everyone, but also stories which illustrate what is good about the justice system and what is not so good. I may be an enthusiast for the law and the
justice system, but that does not mean that I am blind to their defects and deficiencies.
The second part takes a look at the law itself. It tells a different sort of story. Stories which come from real cases which (mostly) I have been involved in deciding, stories about the rights which different kinds of people have – children at school, people with disabilities, LGBTQ + people, workers, women, and patients. This is to show that everyone does have rights. But it is also to show that it is not always easy to know what those rights are or should be. The law itself is not always clear or uncontested. So I ask you to form your own opinion on what the answer should be before telling you what the courts decided.
The third part follows on from that by taking a look at how law is made. From early medieval times it was made by the decisions of the judges in the particular cases which came before them. They would decide the same cases in the same way. But when a new case came up, they would have to work out how to decide it. They would deduce the principle underlying the earlier decisions and how it could be applied to the new set of facts. They would develop the law incrementally, from case to case, and in small steps. And they are still doing this. So we take a look at the Supreme Court of the United Kingdom, the highest court in the land. We do this because, when the Supreme Court decides a case, the rule that it lays down is binding on all the other courts in the United Kingdom – it sets a precedent that the other courts must follow. The Supreme Court does not have to follow what the others have done. It does not even have to follow what it itself has done in the past. It can make law in a way which other courts cannot.
The second way the law is made is by legislation – written rules. There are several sorts of legislation. At the top are Acts passed by the Parliament of the United Kingdom. It is the fundamental principle of our Constitution that Parliament is supreme. Parliament can make – or unmake – any law. Mostly it makes new laws to deal with current problems. But if it does not like what the Supreme Court has decided, it can make a law to change it. Next come the Acts passed by the Scottish Parliament, the Welsh Senedd and the Northern Ireland Assembly. They cannot make or unmake any law. They can only make laws within the powers which the UK Parliament has given them in the Acts of Parliament which set them up. But within those powers
they can do what they like unless the UK Parliament disagrees. Next comes what we call delegated legislation – rules and regulations which are made by government ministers, and some other public authorities, under powers which they have been given by Acts of Parliament. Parliament does have a role in making these rules and regulations: they mostly have to be laid before Parliament; some have to be expressly approved by Parliament; and some can be disapproved by Parliament. Once they are made, the courts can decide whether they are within the powers which Parliament has granted to the person who made them. So we take a look at how government and Parliament make the laws. There are lots of books telling us fictional stories about the justice system – particularly the criminal justice system. There are a few books telling us true stories about other parts of the justice system and most of these concentrate on a particular aspect, such as criminal, family or juvenile justice. This book tries to give the full flavour of what the law and the justice system are all about. Some of the stories are quite mundane, because the law has to deal with everyday life. Some of them are quite dramatic, because some of the situations with which it deals are quite extraordinary. You couldn’t make it up. The aim is to get across to anyone and everyone what the law is about, how it works and why we should all care about it.
Above all, why we should all care. There is so much else to care about – the education system, the National Health Service, what on earth to do about social care, the lack of social and affordable housing, how we transition to net zero – all things which are now regarded as the responsibility of government. But we must never forget that a society cannot function without just laws and an effective justice system. It is time to put justice back on the agenda for all of us.
Part One courts are for everyone
Introduction
The justice system in England and Wales is in four parts, the criminal, civil, and family courts and the tribunals. The criminal justice system starts with the magistrates’ courts, where all cases begin and more than 90 per cent are tried. Next comes the Crown Court, where more serious cases (we’ll come to what is meant by that later) are tried and appeals from magistrates’ courts are heard. Next comes the Court of Appeal (Criminal Division) where appeals from the Crown Court are heard. The civil justice system starts with the county courts, where less serious cases (again, we’ll come to what is meant by that later) are tried. Next comes the High Court, where more serious cases are tried and some appeals from county courts are heard. Next comes the Court of Appeal (Civil Division) where appeals from the High Court and some appeals from the county courts are heard. The family justice system consists of the Family Court, where magistrates, county court judges and High Court judges all sit, and also the High Court, where some cases are tried and some appeals are heard. Other appeals go to the Court of Appeal (Civil Division). The tribunal system is separate from the ordinary courts. The great majority of cases are tried in the First-tier Tribunal, which is split into specialist chambers dealing with tax, welfare benefits, health and social care, etc. Next comes the Upper Tribunal, also split into specialist chambers, where some cases are tried and appeals from the First-tier Tribunal are heard. But there are also some tribunals which are outside this system, for example, the employment tribunals and the Employment Appeal Tribunal, which hears appeals from the employment tribunals. Next comes the Court of Appeal (Civil Division) which hears appeals from the Upper Tribunal, the Employment Appeal Tribunal and other specialist tribunals. At the top of the whole system is the Supreme Court of the United
Kingdom, which can hear appeals, not only from all parts of the justice system in England and Wales but also from Scotland and Northern Ireland. We’ll leave the Supreme Court to one side for the time being. So far so simple, but it is a bit more complicated because there are several different kinds of judge. There are the lay magistrates, who sit (unpaid) in the magistrates’ courts. They are addressed as ‘Your Worship’ or ‘Sir’ or ‘Madam’. There are the district judges (magistrates’ courts) who used to be called stipendiary magistrates because they sit in the magistrates’ courts but are also paid professional lawyers. They are addressed as ‘Judge’. There are the district judges, who sit in the county courts. They too are addressed as ‘Judge’. There are the circuit judges, who sit in the county courts and in the Crown Court. They are addressed as ‘Your Honour’. There are the High Court judges who sit in the High Court and also try the most serious cases in the Crown Court. They are addressed as ‘My Lord’ or ‘My Lady’. There are the various levels of tribunal judge. They are addressed as ‘Judge’. And there are part-time versions of all of these. Then there are the Lord and Lady Justices of Appeal who sit in the Court of Appeal. They are addressed as ‘My Lord’ or ‘My Lady’. And finally there are the Justices of the Supreme Court, who are also addressed as ‘My Lord’ or ‘My Lady’.
I want to show you what is going on in all parts of the justice system in England and Wales, from the top to the bottom. So I have visited two different kinds of tribunal, a county court, two family courts, a magistrates’ court, and two Crown Courts, as well as the High Court and the Court of Appeal. I did let them know that I was coming (apart from the Royal Courts of Justice) but otherwise these were perfectly ordinary days’ work, nothing special, but always, to my mind at least, fascinating.
1 Inside the Royal Courts of Justice
One gloomy November afternoon I find myself with time to kill in legal London – that patch around Fleet Street and Chancery Lane where the four Inns of Court and the Royal Courts of Justice are to be found, with the Old Bailey not far away. And I think to myself, why not start at the top? Before I was promoted to the House of Lords and the Supreme Court, I spent ten happy years working as a judge in the Royal Courts of Justice. I know the secret passageways behind the scenes along which the judges and their staff can get around this vast and complicated building without ever venturing into the public areas (rather like the mice in Beatrix Potter’s Tailor of Gloucester ). I have hardly ever ventured into those public spaces. I have never seen the RCJ (as we call it) as the public sees it. But where do the courts which sit here fit in the justice system?
The High Court judges hearing civil and family cases sit here – although commercial, construction and technology cases are heard in the modern Rolls Building round the corner. The civil and criminal divisions of the Court of Appeal also sit here. And lurking in a side building is the Central London County Court. So it’s a busy place with ninety-odd courtrooms potentially in operation.
I go in through the arched entrance from the Strand, noticing the space behind the railings where demonstrators are often gathered (kettled?) conveniently for the cameras if there is a high-profile case going on. There are steps to get into the building, so help has to be specially summoned if you have mobility issues. Once inside there are the usual security checks, but I am warmly welcomed by the
long-serving security staff, who recognise me even though it is now nearly twenty years since I left. They must like working here, which is a good sign.
Just inside the entrance is the Great Hall. This is a truly magnificent space, its stone walls lined with portraits of ancient Chief Justices and stained- glass windows above them just like a cathedral. There is also a group picture of Queen Victoria opening the building in 1882, surrounded by the top judges and other legal luminaries. But this Great Hall is quite unnecessary. It is an echo of the hundreds of years when the Royal Courts – the courts set up by the medieval kings to dispense their justice throughout the realm – sat in cubicles in the corners of Westminster Hall, that ancient building alongside the Houses of Parliament. Everyone – lawyers, participants and public – milled around in its freezing medieval vastness. The architects of the new building in the Strand must have assumed that they would need a similarly grand space there. But in the RCJ the courts do not lead directly off the Great Hall – the most important ones are on the first floor and there is space enough outside them. So most of the people in the Great Hall are simply passing through.
Just through security there is a handsome wooden noticeboard where the lists of the cases to be heard that day are posted. There is also an information desk with friendly staff. But when I ask whether there is anything interesting going on they don’t know. It’s not their job to know what the cases are and that is scarcely surprising, given the number of courtrooms and kinds of court which sit here. There are also lots of different styles of courtroom. Civil appeals are heard in smart new courtrooms in the East Wing. Family cases are heard in a mixture of grand traditional courtrooms and gloomy 1950s spaces in the West Green and Queen’s buildings. Criminal appeals and High Court civil cases are heard in the Main Building where there are very traditional old courtrooms. Most of these are up steep stone staircases. There must be some lifts, but they are not at all easy to find. I meet a young couple with a baby in a buggy on the first floor, desperately trying to find the way out. Being a stranger to this side of the building, I can’t help, and it’s not easy to find someone else to do so.
The Court of Appeal (Criminal Division)
It is quite late in the day when I arrive, so most of the sittings have finished. Other hearings are being done remotely, a necessity during Covid which is still quite convenient. But it shouldn’t be too convenient – there’s a lively debate going on about which cases ought to be heard in person and which can be done remotely. We’ll see examples of all sorts of hearings in the course of my travels. Today I’m in luck. The Lord Chief Justice is sitting with two other judges in the Criminal Division of the Court of Appeal. So I make my way up the steep stone staircase off the Great Hall and on to the corridor where his court can be found. There is a public gallery on an upper level, but most visitors go in through the doors leading into the well of the court, so in I go.
I don’t think that anyone will recognise me, but of course I am wrong. The usher (gowned) and the court clerk (wigged and gowned) clock me straight away as I slink quietly into the back row of benches, behind three rows of barristers and solicitors. If the Lord Chief Justice, Lord Burnett, and the two judges sitting with him, Lord Justice Holroyde and Lord Justice William Davis, do so too, they give no sign. They are concentrating on the case. I gaze around me. It’s an enormous courtroom, impressive or oppressive according to taste, with wooden bookcases full of law reports lining the stone walls, and a high lantern roof. I doubt if anyone takes the books off the shelves these days, as everything is on the computers which everyone has in front of them. The three judges, dressed in their scarlet robes and short wigs, sit in grand chairs behind a raised bench ‘halfway up the wall’ (as Lord Bingham, senior Law Lord, used disparagingly to say), with elaborately carved wooden panelling and the royal coat of arms behind them, the clerk’s bench beneath them, and several rows of benches for lawyers and the public facing them. There is a witness box to one side, with a press box beside it, and a jury box and a dock on the opposite side. But there are no witnesses and no jury and no press today. There is also no one in the dock. The five defendants who are appealing against their sentences are all appearing on screen from their various prisons. No days out to come to court now. Much cheaper and more convenient. No more early starts and long journeys from their various prisons. No more waiting around at court for the prison vans to arrive.
But I wonder how they feel? Would they feel more engaged with the process if they were there in court? Would the judges feel more keenly that they were dealing with real human beings? These questions are obviously important when cases are being tried, but perhaps less so when appeals are being heard – these depend upon legal arguments, not hearing witnesses.
There is nothing to tell me – or anyone else – what the case is about. As barrister after barrister gets to their feet and makes their arguments, gradually it becomes clear. These are all men who have been recently convicted of sexual offences which they committed a long time ago when they were juveniles or very young men. How should they be punished? As they would have been if they had been prosecuted soon after their offences, when they were young and the approach to sentencing for such offences was more lenient than it is today? Or as the people they are today with the approach to sentencing that there is today? Or something in between? The people they are today with the approach to sentencing there was then? Or the people they were then with the approach to sentencing there is today? It’s apparent that the Court of Appeal has not always said the same thing in the past, which is why these cases have been gathered together to be heard by the Lord Chief Justice.
Another group of visitors troops in shortly after me. They sit and listen for a while and then troop out. They are foreign lawyers here to learn something about our justice system. I wonder how on earth they can do so when there is nothing to tell them what the case is about. Later on, one of them sees me outside the court and asks me about it. I am at least able to give her a brief explanation, although not what the answer is, because the judges have gone away to think about it and will give their decision in writing later. It occurs to me that visitors to the Supreme Court, the final Court of Appeal for the whole United Kingdom, do at least get a sheet of paper telling them what the case is about and who the judges are. Not much but better than nothing.
We believe in open justice in this country. Not for us the secret courts in totalitarian States where no one – not even the people involved, let alone the general public – knows what is going on. Judges should go about their work in the public gaze. It helps to keep them honest and well-behaved. It also helps to keep the public informed about what is
being done in their courts. The courts (mostly) sit in public. Anyone can wander in from the street to see what is going on, as I just did (although you may have to queue for the public galleries in the Old Bailey because it’s so popular). But a lot of what goes on in courts is pretty incomprehensible unless you are involved in the case or have some sort of explanation. How difficult would it be to provide one?
Open justice also means that the press and other media should be free to report the goings-on in court so that it reaches a wider public. This used to be far more common than it is now – press reporting is just as vulnerable to cuts as are the courts. But in the Supreme Court the hearings are filmed and live-streamed. Anyone can watch in real time or go back into the Supreme Court’s website and watch old hearings. A few are even broadcast on television. Not surprisingly, there are calls to broadcast the proceedings in other courts. Small steps are being taken – for example, broadcasting the judge’s sentencing remarks in high-profile cases. I am all in favour. We didn’t find that people played to the gallery in the Supreme Court and anything that helps to demystify the law and the justice system is a good thing in my book. But televising the evidence given in trials is another matter – I’ll come back to that when we visit some trial courts.
Most High Court and Court of Appeal written judgments are available online these days – something which was just beginning when I was in these courts – another good thing. So the appeals which I watched become a lot clearer some months later when I get a copy of the Court of Appeal’s judgment. It has decided that the starting point should be what the sentence would probably have been had the defendant been prosecuted soon after the offence, although there may sometimes be a good reason to impose a more severe sentence (for example, because it has become clear that this was part of a pattern of offending rather than an isolated event, or that the harm done was greater than might have been apparent at the time). But the court cannot impose a more severe sentence than the law allowed to be imposed upon a child or young offender for the offence in question at the time it was committed. Finding out what the law was at the time, let alone guessing what a court would have done, is no easy task because the law on sentencing is complicated and frequently changing. But this is obviously right in principle.
So, for example, a man now aged forty-eight had originally been sentenced to two and a half years’ imprisonment for a series of indecent assaults against young children, some committed when he was aged between fourteen and sixteen but some continuing after he had turned eighteen. His overall sentence stayed the same, although some of the sentences within it were reduced. But a man now aged twenty-nine, who was originally sentenced to a total of six years’ imprisonment for a series of sexual offences committed when he was aged between ten and fourteen against his sister who was two years younger than him had his sentence reduced to eighteen months’ imprisonment. The court’s judgment is nearly thirty-one pages long – I wonder whether the defendants read it?
These appeals would not have been necessary if sentences had remained the same as they were when these offences were committed. But there has been an enormous increase in the length of sentences over the past two or three decades. It is one of the reasons why the prisons are full to bursting. What good has it done? Has it really put people off offending? Has it really made it less likely that they will offend again when they are eventually released? Some very senior retired judges and the Independent Sentencing Review think otherwise – the greatest deterrent to crime is the fear of being caught and prosecuted, not the precise length of the sentence.
The High Court (King’s Bench Division)
Most of the cases heard in the RCJ , however, are civil cases – where an individual or enterprise wants compensation for a wrong done or a promise broken. So I decide to come back another day, this time to see the sort of complicated civil case which won’t turn up in the more humdrum county courts which I am going to visit later (see chapter 2). Again, I wander in at random and again I am in luck. In another grand old courtroom on the first floor, Mr Justice Nicklin is hearing preliminary arguments in a most unusual case. It is basically a commercial dispute, part of which is going on in the Rolls Building round the corner. But part of it is a war about words, and Mr Justice Nicklin is in charge of the list of cases about words – mainly libel and slander, but sometimes breach of privacy (misuse of confidential information),
and occasionally malicious falsehood, this case. The essence of malicious falsehood is that the defendant has deliberately told lies about the claimant which have resulted in financial loss or other damage.
The defendants sent a series of messages on LinkedIn and Skype to a number of the claimant company’s business contacts. The messages suggested that the defendants had a legal claim against the claimant company for market manipulation, that it was worth many millions of pounds, that others may have had the same problem with the claimant and might want to join a class action against the claimant. These messages are said to be false: there was no class action; others had not had the same problem; the defendants had not brought a claim for market manipulation; it was not worth many millions. The messages are also said to have been sent maliciously. They might have been very damaging to the claimant’s business. But what’s really going on here?
In the commercial court which sits in the Rolls Building, the claimant is suing one of the defendants for breaching an agreement to use the claimant’s brokerage services. The messages were sent while this dispute was raging, not only in the commercial court in this country but also in arbitration proceedings in the United States. So were the messages an attempt to bolster the defendant’s case in that dispute? Or is this claim an attempt to bolster the claimant’s case in that dispute?
There is a lively debate going on in court about whether it is necessary to know what the recipients of these messages thought they meant. Perhaps obviously, what the recipients thought they meant is relevant to whether the messages caused any loss or damage to the claimant. But is it also relevant to whether the messages were false? The judge seems to think that it is, but the claimant’s barrister is fighting back valiantly. As I leave, there is another lively debate just beginning about whether an action can be brought in this country for conduct which took place abroad: the messages were sent from Dubai. These preliminary skirmishes are due to last two days, with King’s Counsel, junior barristers and solicitors on each side. Yet the claimant has been unable to show that it suffered any financial loss. So how much will the claim be worth if it succeeds? Is it really worth the candle? Or is there something else going on which the ordinary observer doesn’t know? I learn some weeks later that the parties have settled
the case – that is, agreed a solution – so the judge is spared the task of having to answer these knotty points of law. They have settled the commercial court case at the same time. But the terms of both settlements are confidential.
I found all this fascinating, but it is hardly typical of the work the civil courts do day in and day out. The High Court tries all sorts: such as high-value claims for personal injuries, where the injuries are very severe or there are multitudes of claimants (think of the men who claimed to be victims of radioactive fallout from the atomic tests in the South Pacific or the sub-postmasters who claimed that the Post Office had destroyed their businesses and much else); claims about commercial contracts where there is a lot of money at stake (think of an oil rig which was damaged while being towed to its place at sea); disputes about who owns property (think of a boundary dispute between neighbours or challenges to a will); or building disputes (which seem to crop up after every large construction contract); and much else besides. The cases are often complex, with many lever-arch files’ worth of evidence and documents. They take a lot of time to try. It also costs a great deal of money. Lawyers who do these cases don’t come cheap. And in most cases the party who loses has to pay the winning party’s costs (the rules are different in personal injury cases). So there are lots of reasons not to bring a case or to try and agree a solution rather than let a case go to trial.
Every so often, attempts are made to reduce the cost of civil proceedings like these. None has been very successful. The last big reforms were in the 1990s. It seemed a good idea to put the court in charge of managing the case, setting deadlines, enforcing the procedural rules, identifying the issues and the evidence needed, telling the parties what the costs were at every stage in the case, and assessing the costs straight away at the end of the case if this could be done (rather than sending them off for detailed assessment by a costs judge). But it turned out that doing all this could actually increase rather than decrease the costs. Then it seemed a good idea to discourage people from going to court at all – encouraging them to settle their disputes out of court either by themselves (through their lawyers) or with the help of neutral mediators or in other forms of alternative dispute resolution. But this too can be risky. It is the reverse of open justice. Who knows what
goes on behind those closed doors? Is it another way for the richer or more powerful party to win the day? And there is something really troubling about the courts seeming to rubbish the very service which they are there to provide.
But do these thoughts apply to the more mundane civil cases which are heard every day in county courts up and down the country? Let’s go and see what happens at the other end of the civil justice system – in the Middlesbrough county court.
2 Inside a County Court
Today I’m off to Middlesbrough, once a thriving industrial town on the south bank of the river Tees, and now trying hard to re-establish itself after years of decline. There is a new Free Port under development nearby and Teesside University is a very prominent presence in the town. There are some fine nineteenth-century buildings and a surprisingly handsome modern Combined Court Centre in the middle of town – so called because it houses both the Crown Court and the county court. The Crown Court hears those criminal cases which are serious enough to be tried by a judge and jury – such as serious sex and violence, robbery and burglary. The county court hears those civil cases which are not worth the sort of money which takes them to the High Court. I get lost trying to find it but when I eventually do so everyone is very friendly and welcoming. The clerk who greets me has worked here for thirty years and loves it. The building is well designed, in a square around a central courtyard, with plenty of windows letting in natural light. It seems to be well maintained and there is a good, solid feel to the courtroom furniture. All in all, it feels like a good place for both the judges and their staff to work – quite a contrast to the world outside and to some of the other courts which I have visited. Quite how good it feels to the public thronging the waiting area on the ground floor is another matter.
I am here to observe the county court. County courts up and down the country try civil cases – claims brought by one individual, business or enterprise against another individual, business or enterprise. County courts are there to put wrongs right rather than to punish people. A lot of this is straightforward debt collecting – millions of cases are brought each year by businesses trying to recover the money they say that they are owed by their customers or suppliers. The debt
itself is rarely denied but there can be arguments about how it should be paid – usually in instalments. Some of these cases are really sad, when small family businesses fail or people who have been ‘just about managing’ find that they can no longer do so as bills go up and incomes go down. No wonder the Citizens Advice Bureau in nearby Darlington has a special project helping people to cope with their debts.
Even sadder is the other volume business of the county courts, which is claims brought by landlords against their tenants, or by banks and other mortgage lenders against their borrowers. The landlord or the lender usually only wants the money that they are owed but as a last resort they can bring a claim in the county court to repossess the property – to evict the tenant or borrower from their home. Very often the answer is a suspended possession order, requiring the tenant or borrower to give up the property, but not taking effect as long as the tenant or borrower pays the rent or mortgage instalments together with something off the arrears. These things can go on for years.
At least public funding for legal services (legal aid) is still available if someone is at immediate risk of losing their home. But often things shouldn’t have to come to that. The law is very complicated. A little bit of legal advice and some practical help – making some phone calls or sending some emails – can explain why the arrears have arisen and negotiate a practical solution so that the landlord or lender does not need to bring the case to court. But the cuts to legal aid which the Government made in 2013 meant that this sort of early advice and help is no longer available. The number of court cases has gone up and up – another example of a false economy.
But county courts are not only there to help the businesses, the landlords and the lenders enforce their claims. They are also there to help the customers or clients who claim that they have not been given the goods or services to which they are entitled. And they are there to help people who have suffered harm because of another’s wrongdoing (this sort of law is called tort, from the French word for wrong). If I am injured out walking because another pedestrian, or worse still, a cyclist or scooter-rider barges into me carelessly, then I can bring a claim for compensation. But I usually won’t do so because it won’t be worth my while. The cyclist or scooter-rider (even supposing I can find him) won’t have the money to pay me compensation or refund the cost of