Litigation made easy

Google has made litigation seem to be an open book. Can it really be that difficult to bring a claim when the Ministry of Justice website has hundreds of standard forms, when the Civil Procedure Rules are on-line, when there are website portals giving you full access to your case?

And there are apps, endless apps, algorithms, instant solutions to all kinds of everyday conundrums, that, like the rules of litigation, were once only accessible to the professionals.

Think of how the internet has changed house sales, how Facebook has changed marketing, how high street retail is barely imaginable without on-line retail, how Google, Amazon, Facebook, use our data to feed back to us our interests, aspirations, and wants.

Surely, it isn’t beyond the wit of a Silicon Valley nerd who can write code to enable litigation to become an icon on a smartphone.

Before that’s actually happened, I suggest caution.

I’ve been a litigator over four decades but I still look up the Civil Procedure Rules most days of the week to find new details, or to check the precise way a rule is written, and I still read judgements on procedural issues, new, and not so new.

In short, I’m still learning about the rules of litigation.

As well as this, I’m still finding out from bitter experience how those rules can and do lead to outcomes I believe have little to do with justice, but everything to do with process, rules, and financial power. And I frequently advise clients that what may seem like common sense must be considered in the context of what a particular procedural rule dictates.

In the UK we have a schizophrenic approach to lawyers and litigation. We want to get the lawyers out of litigation, to allow cases to be transparent so judges can jump to the obvious conclusions we all know must be there waiting to be found.

If you take lawyers out of litigation, what do you get?

Sometimes, you get an ombudsman who does all the investigating for you.

Sometimes you engage a claims management company – let’s not go there, into the wild west of this dubious sector of legal services.

Sometimes, in fact, most times, you act in person.

So, you start a claim on a Claim Form – form N1 found on the MoJ website. You pay the Court fee. You wait a few weeks.

Suddenly you receive a sealed Court order that states that you must – the word will be ‘must’ – you have no choice – re-draft the Claim Form. The order may say something like this:

The Claimant must by such and such date file and serve a fully particularised statement of case.

You thought you’d made a fair stab at it first time, but you try again.

This time you get a sealed order back a little quicker, but still after a few weeks delay, which says something like this:

Unless by such and such a date the Claimant file and serve a full particularised statement of case that includes the breaches alleged and the remedy sought, the Claimant’s case shall stand struck out without further order.

It’s not the job of the judge to formulate your case. You might reasonably imagine it is since if there are no lawyers, or they cost too much, or you don’t know how to approach them, or you’ve been encouraged by stuff on the internet to think that litigation ought to be easy.

And if you imagined there is some support service within the MoJ, forget it. There aren’t enough judges or enough court staff, let alone staff who have legal knowledge to help guide you to get your paperwork in order.

The Civil Procedure Rules are available in digital form but they cost £500+. Hard copies are not hundreds but thousands of pages!

As I said, a note of caution. Without doubt some litigation can be done without lawyers. But try suing your bank for £25,000 without a lawyer and see where you get. Or challenge your local authority, or the Government, of a large insurance company, or you builder, or your local hospital….

It’s like using Google to self-diagnose. Who needs a doctor when you’ve got Google?

My son had shingles last year. Within seconds of seeing his blisters, Google lead him to conclude he’d got a condition so rare it was likely to lead to imminent death.

The doctor diagnosed shingles immediately she saw the blistering, prescribed anti-viral treatment. He’d recovered in less than two weeks.