Who should run the justice system?

Family Law|March 4th 2016

Let’s be honest: the justice system is a mess. This is quite simply because we don’t have anyone who can run it effectively.

Very few barristers, perhaps frustrated actors in their wigs and gowns, come from commercial backgrounds. They choose their profession for many reasons but a desire to run a commercially successful business isn’t usually one of them. In practice few have to worry about running their chambers. Instead they worry about managing their personal overdrafts against collecting in their fees which might be outstanding for a long time. Business men they ain’t.

Our senior judiciary is drawn from an even narrower pool. They are chosen for their powerful intellects, their grasp of the law and their ability to make sound legal decisions which will become precedents and thereby form the basis for future interpretation of the law. It’s an incredibly tough and difficult task.

But are they chosen for their ability to run a business? No. Why should they be?

On the other hand, in other areas of the legal profession, many lawyers have no choice but to become businessmen or women in order to run their firms. They have to grow their firms, eradicate debt, invest the funds needed to keep it flourishing, provide excellent levels of service and finally hand them on in good shape for those coming up behind. Law is, like it or not, a business, offering the public a service. If they have confidence in you, they instruct your firm. If they don’t, well, they don’t.

Some lawyers succeed.  In fact the majority do, but some fail spectacularly as well – witness those law firms which have gone to the wall in recent years. The risk that commercial success could turn to failure applies to law firms as much as any other business. Disasters are frequently predictable when firms indulge in rash decisions or over expansion with roots built on sand. Such firms have crashed and burned. But other law firms with sounder bases have grown and expanded over these last few tough years because they understood their market and met supply and demand appropriately.

I run a comparatively small law firm, and I was fortunate because as I grew up I saw how my father, from the poorest of backgrounds, became a self-made man. The lessons I learned from him about how to run a business have remained with me. My father, for example, enjoyed going to work, had a sense of humour, knew how to make a good deal with a handshake and stick to it. He was always pleasant to people and they were to him, but he was also shrewd and a good judge of character. He could buy and sell on a large scale. He knew how to make a profit. And above all he knew when enough was enough. I used to enjoy lunchtime chats with him and his business partner and I learned a great deal from them about running a successful business. He used to tell me I had the best job in the world because I was selling my brain and was never left with old stock. I learned plenty from him over those years. He arranged for me visit his friends in the commercial world, so I could so see in practise what I was studying in books, has proved invaluable to me as I run my law firm. Nowadays the pressure is on and law firms must be as commercially-focused as they have ever been.

So with my own particular background and my knowledge of far more fantastic, extremely successful law firms, some of them international, I am left in despair when I read about the mess the justice system has fallen into. There is a vast public demand for its services but so often all we ever hear about is an ever-growing debt mountain, and seemingly useless, backward-looking efforts to try and address that,. Instead we should be talking about how to improve and strengthen the system so it becomes as modern, fit for purpose and the best it can be.

Surely every business is capable of success? Even from my lowly vantage point I believe this to be the case. When I helped set up the Law Society’s Family Law Panel from scratch, it became the most successful of all their panels, and profitable too.

It starts of course at the top.

It’s certainly not the fault of the senior judges who came into the profession for other reasons and now find themselves tasked with addressing these issues. It’s clear from their attendance before the Parliamentary Justice Committee how frustrated they are. Their comments merit a thorough read. They clearly have little confidence in what’s being done but faced with pressure from all sides they are doing their best. It is clear that they know the justice system has been set on a destructive course. They have my sympathy.

Government ministers no longer come from commercially successful backgrounds where they have proved themselves and can put their experience to use for the good of the country. Ministers today seem to be career politicians, seduced early by the lure of the limelight and the power.

But what commercial know-how do they have? The current Lord Chancellor wasn’t ever a lawyer, he was a journalist – the one before him ditto, but a TV executive. Yet they are tasked with running the justice system profitably, with absolutely no proven ability of any kind to do so.

And what of our civil servants? The faceless people we never hear from? If they knew how to run a business, I imagine they wouldn’t be civil servants.

So we are bedevilled across our justice system with rafts of people from the top down who don’t appear to have the faintest idea and certainly no track record in taking the reins and turning a legal business around.

The starting point surely is to recognise the nature of public demand and be passionate about improving the business you are running, in order to meet that demand profitably. To work 24/7 if need be, to build, strengthen, modernise, and not waste time looking backwards and making drastic cutbacks that ultimately end up saving any money at all. Ascertain what is clearly needed and then work how to provide it at a profit. Law is a business, not a charity – but commercial success does allow lawyers to help the genuinely needy.

So just what would it cost to provide a modern, streamlined and productive service and how should we charge properly in order to provide it? For example it can’t be right to provide the attention of a High court for the cost of a single application fee. Lawyers charge by the hour, so why can’t the courts charge the public more appropriately for their use? We should not be be scared to levy properly costed bills for court time. People do pay for good service. There are all kinds of charges that could be levied, across the board. They could be means-tested and perhaps combined with a form of statutory charge similar to the one that used to be used with legal aid, but this time properly administered and set at an appropriate level.

Modernisation means use of streamlined, proven, online technology of course. Ideas are mooted developed and seized upon by academics, judges ministers and civil servants alike but everything that’s been done so far and everything set to continue into the future seems doomed to abject failure. That is because the endgame isn’t about producing a better system but one that ignores public demand and seeks to impose an unwanted system solely focused on saving money.

But does it do even that? Can’t lessons be learned from other failures? The CSA, now in its fourth reincarnation, is as bad as always. Its abolition is long overdue. Yet doggedly on they go, ploughing more and more money into a failed system the public demonstrably do not want.

Withdrawing legal aid too was supposedly done to save millions but in reality it hasn’t solved any problems. It never could, as we discussed in my last post. And there are now all the socioeconomic problems of people who are much less brave, living miserable lives unable to go to court at all. It all leads to countless miscarriages of justice. So what money has been saved overall here? I suspect it’s costing the country more than ever before.

Is it really necessary to abolish 86 courts? The government can see masses of short term money coming in from the sale of the buildings. But isn’t it swings and roundabouts in reality? They promise an online system in lieu, one that isn’t even yet fully developed, operable or proven. And yet we are told divorces are supposed to be coming online next year.

Costly government IT disasters have been happening for years, costing taxpayers huge sums. Just yesterday, Supreme Court President Lord Neuberger recalled, in a speech to the Northern Ireland Assembly Committee for Justice:

“…the Supreme Court has a very effective IT system. The judges are very happy with their systems in court, in their chambers and when away from the Supreme Court. I believe that the staff are very happy too, although we have had teething problems. When the Supreme Court was being established during 2007-2008, we had a two year programme liaising with the Government to produce an IT system which turned out to be mediocre so far as the Judges were concerned and worse than mediocre so far as the court staff and court users were concerned. However, two years ago, we installed a new system, which has worked very well. I think that there are a number of lessons which can be drawn from this experience.”

Then there is the plan to increase divorce petition fees, not because the administrative cost of a divorce requires it (it actually only costs £200) but because they have a captive audience. They are that clueless.

Every business big or small faces bad times. Some sink and others survive when they boldly accept the bad times as a challenge and come through it with sensibly costed products fit for purpose that suit demand. Profits then follow.

We should get the justice system working cost effectively, successfully meeting supply and demand, ploughing profits back into the system.  Otherwise, as we have seen in the last few years, all the floundering, tinkering and desperate cost-cutting measures designed to save money and produce a second rate system are nothing but a continuing recipe for disaster.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. JamesB says:

    Seems to be that a prerequisite is to have Asthma or vertigo or other health issues. I say that as I remember the barristers and Judges in family court used to huff and puff or roll their eyes a lot. they used to huff and puff when my case was presented and roll their eyes when my ex wife’s case was presented. I was watching a film last night (The Way I Live Now) and in it it came on the radio that civil law had been suspended and I caught myself thinking that that didn’t sound too bad.

  2. JamesB says:

    In the film the government suspended civil law and imposed martial law as was under attack and at war. I don’t think that ever happened yet in this country.

    I remember in the film Lawrence of Arabia, when the Arabs took Damascus, second after trying to fix the water supply was trying to hear civil law petitions. Not sure what my point is, perhaps that we do need good civil law as well as good water.

  3. The Devil's Advocate says:

    Interesting perspective.Rallies a family background in operating a small family business to you having international clients.

    Addressing justice is now like dentistry and seems only to be profit driven.something which you and your colleagues in your profession could be saved financial embarrassment if a reasonable proportion if an FTT was made legislation.

  4. Michael Greenslade says:

    Interesting as it is to read Ms Stowe’s comments about running the legal profession as a business, at first I thought and hoped she would be addressing something even closer to the hearts of probably most of her readers (lawyers probably read ‘The Solicitors’ Gazette’ or some such) — namely the “long overdue” reform of the divorce laws. But no.

    I guess the points she makes are valid enough. (Except, if you are going to point out that politicians often have no experience of business — you only have to look at Donald Trump if you want to see just how utterly horrible an aspirant “politician” could come from a business background….) Assuming most readers are either pre- or post-divorcees, or those suffering the agonies of being in the throes of it, what surely is of more concern is what can be done to make divorce laws more FAIR. Baroness Deech was apparently trying, in December 2014 (though as far as I am aware, sadly she did not get very far).

    Till now, they do not, for instance, ever take any account of the growing numbers of “scammers” — those who quite literally MARRY simply so they can DIVORCE. And thus “soak” their partner for as much as they can get away with in the “settlement”.

    It is quite obvious which gender is more likely to be responsible. What sadly seems to be the case is that slowly, slowly, like a creeping disease, this manifestly criminal intent is growing — but simply not being acknowledged — or sanctioned in any way. SOME scheming women are walking away with handsome rewards for staying with a man they only married for 2-3 years simply so they could cash in when the “settlement” they are likely to be awarded has reached a decent level.

    Obviously not all short marriages were predicated on such selfish, greedy aims — no one would try to postulate that. But the fact is, some ARE. And it is amazing that, so far, it seems, nobody dares mention it — while certainly nothing is being done about it. As if every litigant who steps into a divorce court is there simply because “the marriage broke down” — when in fact SOME were deliberately sabotaged.

    When is the law going to start to recognise that, even as a possibility? Until the law starts to take account of this GROWING phenomenon, there will be more and more travesties of justice. And that should be even more of concern to the readers here, than the efficiency of the court system — which is certainly also very much open to criticism.

    Family Court lawyers are probably uniquely placed to be very much aware of the inequities of the divorce process. And while women lawyers are naturally going to be aware of the vast number of ways the women involved in divorces can be cheated, done down, or harassed into agreeing what may be unfair settlements by dishonest spouses — who, ever, is speaking up for the men “caught” by scheming women who, automatically, it seems, are always granted the benefit of the doubt? Along with the benefit of a handsome payout….

    It’s the LAW that needs reform. Along with the whole “justice” system, no doubt.

    • Stitchedup says:

      I have to agree… I was disappointed to read Marilyn’s post having read the headline. It’s the quality of the law that matters not the money. Good quality law can be handed down in pubs or YMCAs for that matter as long as the environment is neutral and the decision making unbiased.

      I was fooled for a minute into thinking the penny had finally dropped… Silly me.

    • Luke says:

      Michael, the answer is simple, marriage isn’t necessary anymore – I accept that the wedding day is nice for women and there is a certain ‘status’ that is felt that comes along with it – but the price is quite clearly ludicrous for the vast majority of men.
      I think the MOST important thing a father can do is tell his son NOT to sign the marriage certificate !

  5. Stitchedup says:

    I should clarify my earlier comment, money clearly matters for the litigants as it can determine whether or not they are left with a roof over their heads. The fact is lawyers and judges have rendered the system too expensive through convoluted law and extortionate fees. Add to that politically influenced bias and a de-facto approach that leaves a man with little choice but to challenge it in the futile hope that the system is fair and justice will be seen to be done.

  6. Michael Greenslade says:

    Sorry, Luke, you are looking at it from a rather parochial viewpoint: Not everyone is going to end up marrying an “English” girl…. By this I mean that with overseas travel being so common, and Internet Dating increasing by leaps and bounds, it is not at all unusual for a man to fall for a “foreign” woman. By this I mean, someone who would need a visa to enter the country, before they married. For many “exogamous” men then, they are forced to marry, if he wants to stay together with his wife. There is NO alternative: At some point the visa will run out.

    But if “further and better particulars” are required, I will have to reveal that in my comment I was thinking of a topic that is sure to become a growing problem. That is of course, if those who are responsible for framing the laws of England and Wales (which, it must be said have a strong influence on other territories overseas, reflecting the ideas of the “mother country”) do not start to take account of it.

    In fact, it is already a problem, in some areas of the world. I am thinking here of those “scammers” I mentioned — those foreign women for whom marriage is but a stepping stone to a better life. In Asia, sad to say, it is mostly filipinas who are gaining a reputation for “fake marriages” and “spousal visa fraud”. I hasten to point out what should be obvious: By no means are ALL filipinas involved in this cynical “game”. It is the bad eggs who are likely to spoil it, and eventually make it difficult for those who at least do not have the intention to divorce. Although, let’s face it — because it is obviously true — if things don’t work out, whether it is two years or ten years later, a divorce will still see many of them a lot better off than they would otherwise have been. Hence, it is becoming something of a “cottage industry” to those more cynical ones, who actually PLAN for the inevitable divorce — which they engineer. Of course, they have little or no investment in the marriage, and soon start behaving as irresponsibly as they wish, safe in the knowledge that, with the way the divorce laws are, they cannot lose.

    • Luke says:

      “Sorry, Luke, you are looking at it from a rather parochial viewpoint”
      Not at all, I am looking at it from a rational standpoint – i.e. not being a mug.
      Start off by limiting your search to women who have the right to reside in the UK (they don’t have to be English) or be prepared to move abroad and cohabit there. I am not saying the situation is ideal – but there is too much money to be made in divorce, if you think the ripping off of men in divorce is going to end any time soon I’ve got a bridge I’d like to sell you…

    • JamesB says:

      Michael Greenslade, you are out of order. There is no reason why a westerner should not marry an easterner. The rest of your dodgy explanation makes no sense at all as you could say it with regards to anyone. Therefore there is only one logical conclusion to be drawn from your post and it is not pretty.The Philippines is the only country in the world where they don’t have divorce, so, so much for your bs theory.

  7. The Devil's Advocate says:

    Concur with both Messrs Stichup and Greenslade’s comments in full.

  8. Michael Greenslade says:

    Luke, basically we are not in disagreement. It is just that you see things based only on where you are — which, it seems clear, I am not. I thus necessarily have a somewhat wider perspective.

    Let me say that it is all very well being “rational”, but when it comes to love (which is supposed to be what it’s all about) rationality often goes out the window. And generally, the world is no worse off for it. Because we can’t all be lawyers or accountants (apologies to them — it is just an example!) Artists and creative people would certainly feel constrained to try to operate in such a manner.

    I mean, fish and chips tastes great and it is solidly reliable — but some of us don’t care for it every day. Variety is the spice of life, and even if one prides oneself on one’s “rationality”, one trip overseas can send it flying. It is then a little too simplistic to demand every man behave entirely rationally — when men are no more rational in any other area! For sure, it is a fallacy to think we are, or can be.

    Also, the world is a lot larger than just the UK — as I indicated by pointing out that the laws of England and Wales influence the justice systems of several overseas territories. And nationals of other countries may come and work there — on a visa. So again the “rational” advice is rather redundant….

    But we both agree on the sad fact that, one way or another, “There is so much money to be made from divorce” — and, should I need to point out the obvious — almost inevitably, it is THE MAN who has to pay! For just about everything. And that rubric, clearly, is WRONG.

    • Luke says:

      Luke, basically we are not in disagreement. It is just that you see things based only on where you are — which, it seems clear, I am not. I thus necessarily have a somewhat wider perspective.
      OK, but this is a website principally for UK Family Court law 🙂
      “Let me say that it is all very well being “rational”, but when it comes to love (which is supposed to be what it’s all about) rationality often goes out the window. And generally, the world is no worse off for it. ”
      Well, respectfully I would disagree – if you are sitting in a bedsit looking at 4 walls paying spousal support, child support and losing 55%-65% of all your lifetime assets (which is not uncommon) you might consider your ‘world’ a lot worse off !
      Luuuurve ( 🙂 ) is primarily an evolutionary mechanism to make couples pair bond long enough to get children to a certain level of capability – there is no reason not to enjoy it but if you become completely irrational then the results under today’s laws can devastate your life.
      “I mean, fish and chips tastes great and it is solidly reliable — but some of us don’t care for it every day. Variety is the spice of life, and even if one prides oneself on one’s “rationality” ”
      I would probably agree, but if anything that strengthens my argument to avoid marriage !
      “Also, the world is a lot larger than just the UK”
      Yes it is, and the laws of other countries can be very different, but again that really is irrelevant, we are talking about the UK and UK laws apply.
      We both agree that the UK laws are wrong – but in reality I am saying that they will not change so we have to live within them – and that being so I don’t generally see any upside (and a MASSIVE downside) to a man in getting married.


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