The Master of the Rolls Lord Dyson has recently spoken out at his shock that there is a need for appeal judges: “Well paid judges at first instance should be able to get it right first time, every time. The fact that so many fail to do so causes parties to have to incur substantial further legal costs on appeals. Without the need for appeals, a whole swath of the judiciary would be freed up to deal with proper hearings rather than unnecessary time being taken up attempting to correct mistakes made by more junior judges”.
OK. He didn’t really say that. Why would a senior appeal judge think that appeals were a bad thing and a cause of unnecessary expense?
What he actually said was: “I am horrified that costs litigation is now a recognised specialism. Costs law is so complicated that there is a Costs Bar and Costs Law Reports”. Sadly, history does not relate what his subsequent reaction was to discovering that costs litigation has become such a blight on the law that a specialist court has had to be set up to deal with NOTHING BUT this area (dealing with 15,943 assessments in 2015) and there are now full time judges appointed to deal with NOTHING BUT costs litigation. I trust Lord Dyson had a lie down in a darkened room to recover.
Costs litigation may well be one good example of the complexity of the whole system but is it really any worse than whole swathes of the day-to-day work that appeal judges have to deal with? How many Court of Appeal decisions have there been trying to give guidance as to the proper operation of Part 36? Part 36 is meant to be a short and self-contained code. This is then compounded by the repeated re-drafting of Part 36 to try produce a rule that actually achieves its supposed ends because previous versions are perceived to have failed. I still see, on a virtually weekly basis, defectively drafted Part 36 offers. Admittedly, much of this is due to lazy lawyers, but the inherent complexities created by even this narrow rule must be a contributing factor.
The majority of appeals are as a result of a judge at first instance making a “mistake” as to what the law actually is. (And sometimes further judges making further mistakes at subsequent appeals which then, in turn, also need to be appealed.) The unsuccessful party to the appeal is expected to pay for those mistakes to be corrected.
The key to reducing the costs of litigation is to simplify the system. An increase in fixed costs is no doubt a part of that solution but this is surely just the tip of a massive iceberg. If the senior judiciary focused their minds on simplifying the system so that their own role became redundant, proportionate costs would no doubt follow naturally.