The appellant said that the judge had erred in allowing only written evidence. The case was long running, complex, unwieldy and the intransigent parties were each acting as litigants in person.
Held: The court asked whether mediation might not now need to be obligatory.
The judge had anicipated obtaining consent from the parties to a hearing on the documents, but had in the end proceeded without formally seeking the consent of the parties. This was an error, and the case had to be remitted: ‘It is unfortunate for the judge who strove hard to manage the case to keep it within proportionate bounds. But a cardinal feature of our civil procedure is that a trial is conducted on oral evidence where matters are in dispute and the judge ought, therefore, to have acceded to the request to hear the witnesses that the defendant wished to call.’
Sir Alan Ward said: ‘What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. 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. Judge Thornton 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 expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.’
Hughes LJ said: ‘Unfortunately the judge’s efforts to do justice in this case, and to understand the rather unstructured arguments advanced on either side, led him to find himself reaching a conclusion of fact which was contrary to the evidence of a witness whom he had not heard and whom one party wished him to hear. I also agree that the case is a good example of the way in which efforts to save money on legal representation can often end up costing everyone, and in particular the public, more rather than less.’
Hughes LJ, Sir David Richards, Sir Alan Ward
[2013] EWCA Civ 234
Bailii
England and Wales
Citing:
To be revisited – Halsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
Cited – Deweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Leading Case
Updated: 01 November 2021; Ref: scu.472069