MONUMENTAL INCOMPETENCE

I am told that judges, lawyers and staff in the family courts may have to cut corners and exceed time limits because of the high volume of work, and by all accounts, it is a malaise spreading throughout the entire court system.

My recent experiences of the court service do not auger well, and whilst it is easy to blame ‘high volume of work’, much is down to incompetence. In addition, the increasing involvement of the litigant in person is a factor. If you make litigation ‘user friendly’ then you can hardly complain if litigants in person use it.

In the civil and family courts, legal aid is not readily available, a commendable attempt no doubt to keep costs to manageable proportions, so the litigant in person has little help beyond their local Citizens Advice Bureau and a handful of self-professed experts down at the Bull and Bush public house, where they know everything. Tempting though it is for judges to throw their arms up in disgust and dump the whole case in the rubbish bin, this is unlikely to find favour with the powers that be.

These and more are challenges to the court system, but the challenges arise primarily from monumental incompetence.  I realise that when I contact a court, either by email or phone, I am told in advance that court staff are not legally qualified and therefore cannot offer legal advice.  Fair enough, but invariably the purpose of my contact is simply a request for a progress report and an update, not unreasonable in the circumstances.  If I send an email, I get a computer generated reply which reads: “Thank you for your email which has been received by the court. We will reply as soon as possible,” but they don’t.  In one case, I sent 8 emails, all receiving the same computer generated reply, and nothing else.  I was subsequently criticised by a judge who reviewed my case and told me that the court staff were under considerable pressure and I should stop pestering them!  Unhelpful in the extreme, and if this is the prevailing attitude, what hope of reform?  Finally, in sheer frustration, I made an official complaint to the Ministry of Justice, which at least generated a prompt reply from the clerk to the court’s bankruptcy division.  As my case had absolutely nothing to do with bankruptcy, the reply was well intentioned if wide of the mark.

In June 1996 the Rt Hon Lord Woolf published a review of the civil justice system. His findings were that the civil justice system was too slow, too costly and too complex. As a result of this review legislation was made for the introduction of rules of court to be called the Civil Procedure Rules (CPR). The rules are to be made with a view to securing that the civil justice system is accessible fair and efficient, and the rules are both simple and simply expressed.  Sadly, they failed on both counts, and as they say, the road to hell is paved with good intentions.


After 3 years of navel gazing, the CPR came into force on 26 April 1999, and are now the bible of the civil law.  But what Lord Wolff and his committee didn’t envisage is that these Rules would take on a life of their own, to be analysed and gnawed over ad nauseam. 

I remember the good old days when judges decided cases not on the niceties of legal semantics but on good old fashioned common sense. I remember one judge in particular who denied Counsel access to law books on the basis that he was the law in his court, and that was that.  His view may have been extreme, but he was rarely appealed and there was little or no backlog of cases waiting for his determination.

We need judges to lead, not follow.  We need judges with imagination and the confidence to make decisions.  We need judges who are not afraid  of their own shadow.  And above all, we need judges with a mind of their own and not simply the mouthpiece of the civil service.  If the civil service want to remain monumentally incompetent, let them do so, but not on our time.

Published by

david

David is an English barrister, writer, public performer and keynote speaker. His full profile can be found on his website.

Leave a Reply

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.