Put it on the dogs

A long time ago when I first started doing litigation, my former boss when giving a lecture to a group of surveyors, stated that his best advice when judging the merits of embarking on litigation was not to.  He suggested that there was a pain free, far quicker option with absolute certainty, incapable of appeal – take what would have been your legal expenditure and put it on the dogs or the horses.   Obviously this was met with some amusement but in fairness, over my years of experience, the wisdom of this rather light hearted quip could not be truer.

I detail below the different layers of judiciary you will encounter and the rather frightening prospect that the majority of claims are dealt with by the least worthy candidates.

In England and Wales, the judiciary is broken down into three main areas:-

1.       The Court of Appeal and above


The Judges of the Court Appeal are known as Lord Justices and are chosen from Barristers with at least 7 years calling (previously 10 years call).  In the main, they sit as a panel of 3 on the Court of Appeal, are extremely competent and exacting.  This is the court that gets the law right and really is a no nonsense tribunal.


2.       High Court Judges


Similarly, these Judges tend to be chosen from Barristers with at least 7 years qualification and hear cases of a technical nature or in excess of £100,000.00.  Again, the Judges tend to be of a very good standard indeed, with one or two exceptions, and work in a predictable, methodical manner.


3.       District Judges.


Unfortunately, it falls to District Judges to dispense (civil) justice en mass.  District Judges hear cases from a nominal amount up to £30,000.00.  They hear a mixed bag cases from family disputes, commercial cases, through to harassments issues.  They are chosen from both Barristers Solicitors and can work on full time or part time basis.


A problem with District Judges is that their quality ranges from quite gifted through to fairly abysmal, and there is no guarantee of quality when you embark on your litigation.


The problem for anyone considering litigation is that the chances are, you will end up in front of a District Judge where so often, the rules of court and the law itself are discarded (often because the judge is not aware of the law) in favour of what the judge considers to be, an equitable approach.

The effect of this is to make the County Court so wholly unpredictable that any sensible business would never want to find itself at Trial in the County Court because your case may be prepared entirely in accordance with the Civil Procedure Rules and your position may be perfectly aligned with the law but you could still lose because of something so petty as the fact that the judge thinks you are bullying the opponent by the simple act of pursuing them for money that they rightly owe you!

Worse still, District Judges will often base their judgments on findings of fact making any appeal, virtually impossible.

It would be wrong to tar all District Judges with the same brush, there are some exceptional DJs; the problem for any litigant is simply, five times out of ten, you will find yourself in front of a someone who is incapable…..or worse !

On a practical level one way of avoiding litigation or at least minimising the possibility, is to draft into your terms and conditions a term that dictates in the event of a dispute arising, the parties MUST first attend mediation. This compulsory term will vastly increase the chance of sorting out the dispute – you could also make the term a “binding” mediation ie the mediator makes a decision if the parties cannot agree and that decision is binding.

You could also ignore the above and risk your local DJ or indeed gamble your money down the bookies…..

For all and any legal enquiries please feel free to call Giles Ward or one of his team for a free coffee if you are in the area or a free tel-con on either 0113 245 0845 or giles.ward@milnerslaw.com or   https://uk.linkedin.com/in/giles-ward-6b318731 or https://twitter.com/MilnersGiles.

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