President's Letter (February 2014)    

It’s a strange feeling, turning right out of my road and heading in the opposite direction to the one taken for the last 15 years but at least it means that, since leaving, I have not yet subconsciously driven to Morgan Cole’s offices.

This is something of a surprise to Helen who used to reckon that, no matter where we were heading, if I was driving we always ended up going via Morgan Cole’s offices, because I always set off in that direction.

Settling in to a new firm, new offices, new role takes some time. In the first days, I had the odd feeling that I was on secondment rather than embarking on a career change, despite the warmest of welcomes from all at Berrymans. Starting a job now is very different experience from what I dimly recollect of the last time I did so. Two days of induction training followed by a four further compulsory training sessions on data protection, money laundering, health & safety and diversity. The latter was interesting, as my team counted the number of breaches of policy we would have been guilty of previously (all amongst ourselves I hasten to add).  And there’s more to come.

It’s a far cry from when I started with Morgan Bruce & Nicholas in 1982, which involved me turning up for work and basically being left to my own devices. The only induction training came from another Articled Clerk, who shall remain nameless, who explained various ways to maximise income from travel expenses etc.

As I start with a new firm, a new broom is sweeping through civil litigation in the post Jackson era, changing the way we have been conducting litigation. Many of us have treated a Court directions timetable as advisory rather than compulsory, with adherence an aspiration not an expectation in the absence of express sanctions. No longer! We were told before the advent of CPR that directions would have to be followed and, where a time limit was missed, an Application would have to be made to extend time. It didn’t happen. Behaviour did not really change much, which was not surprising when the new Overriding Objective directed that all matters must be dealt with “justly”. Unless a breach seriously prejudiced the other party or a trial date, it was generally overlooked. Now, not only are we told that directions must be treated as almost immutable, it has been said by one Judge that the parties cannot even agree amongst themselves to vary the timetable.

The C&DLS Members’ Forum for January, hosted by Queen’s Square Chambers Cymru, was entitled “Litigation in the post Jackson era”, and looked at the Mitchell decision and other recent cases that have drummed home the change of approach. A lively discussion followed the presentation from Hamish MacBean and James Bromige, with claimant and defendant lawyers both expressing concern about the path down which we are being taken. It does seem to me that, though the words of the original Overriding Objective are still there, they have effectively been discarded because the indications are that procedural issues will no longer be decided by reference to the balance of prejudice. One unfortunate consequence may be that, in the short term, the more collaborative approach adopted in recent times by claimant and defendant lawyers will be challenged. A request to extend time or vary directions, or to overlook a minor breach, which may until now have been agreed as a matter of course, may cause some soul-searching. The Client ought to be consulted and, if told some material benefit might be gained from refusing consent, may well instruct you to do something you would rather not.

However, amidst the angst, we must remember that the problems arise only if lawyers fail to comply with the directions set. Most directions are agreed by the parties, so there should be limited excuses for being unable to comply with them. Even those imposed by the Court should not pose a problem for those well organised and on top of the matter. And, for me personally, that is as good a reason as any for changing the habit of a life time and now embracing the concept of case management!

I’m delighted that Mr Justice Wyn Williams has accepted our invitation to speak at the Annual Dinner. I have known and worked with Wyn for many years, as many of you will have. I exhort you to show your support for him (and the Society) by coming to the Dinner – see www.cardifflaw.org/home.php?_dds=true&fileID=156  for the application form.

See you there!

 

Simon Cradick
Simon.Cradick@blm-law.com

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