John Bolch on another judicial reality check

Sometimes there is a wealth of wisdom in a simple judicial comment. And sometimes that wisdom may be self-evident to most, yet cannot be seen by one or both of the parties to the proceedings, blinded as they are by the smoke of battle.

Just the other day I wrote here about Mr Justice Holman’s comments in the “not on the same planet” case, in which he pointed out to the parties that, with £150 million available, settling their divorce dispute should be easy – people who are struggling to afford two-bedroom houses have difficulties. It was, I think, a timely reality check that would hopefully awake the parties and stop them from sleepwalking into a hugely expensive and destructive fully contested financial remedy hearing.

Another example of a wise but self-evident judicial reality check occurred in the Court of Protection case Re BN. The case has already been discussed here, so I won’t go into the details, save to briefly recap that it concerned an application by a woman to revoke Lasting Powers of Attorney for her mother’s affairs, in favour of her sister and her daughter. The application was dismissed ‘on the papers’ (i.e. on the basis of the documents presented) by Senior Judge Lush, but the woman was not prepared to accept that and requested that the decision be reconsidered, resulting in a full hearing.

At the hearing Senior Judge Lush confirmed his original decision and, when considering the issue of the costs of the hearing, made the following telling comment:

“Some people insist on having their day in court, and some even hanker for a showdown, but ultimately someone has to pay for an attended hearing…”

It’s such a simple and obvious statement but, as I said above and as any lawyer involved in any type of civil litigation will tell you, all too often it is completely missed by one or both of the parties to a piece of litigation. Their ‘blood is up’ and they demand their ‘right’ to their day in court (how often do we hear clients saying this?), heedless of the cost consequences.

Of course, there are times when the other side are being completely unreasonable and there is therefore no alternative but to proceed to a court hearing, but in the vast majority of cases it can be avoided. In fact, court proceedings can usually be avoided entirely.

I remember many years ago when I was new to the law being told by a senior barrister that litigation was ‘a mug’s game’. That is just as true now as it was then. Litigation is expensive, it is stressful, it is time-consuming and very often the outcome is unpredictable.

And if court proceedings generally are to be avoided, then contested hearings, the most expensive single element, should especially be avoided?

So if you are reading this seething with the desire to go in front of a judge and expose to them the heinous misdeeds of the other party and the utter justness of your case, do stop for a moment and reflect upon Senior Judge Lush’s words. Not doing so could well cost you.