More haste, less speed
'But why do you need a trial date more than a year from now?' asked a judge at a recent hearing at which a pre-trial timetable and hearing date were to be ordered. This question is usually asked by incredulous clients who cannot believe that the issue of a writ is not followed, within a week or two, by a full-blown hearing of all the knotty issues of their dispute.
Traditionally the trial date has been dictated by the availability of the courts. Courts are booked up with numerous sizeable actions, listed on a four or five-fixture basis, so that if one case settles there are others to bridge the gap and keep the judge busy. Thus they are unable to give hearing dates for even reasonably short trials within a year. At the time when the Master of the Rolls commented in Crouch that the then Official Referees lists were something of a scandal, disputing parties were obliged to wait for up to two years for their day in court.
The popular misconception, of course, was that the gap between commencement of proceedings and the trial date is dead time and simply indicative of the inefficiencies of the legal system. In fact, a lot of work is required before a case, particularly a technically complex building case, is ready for trial.
The issues have to be defined, usually by exchange of pleadings. Relevant documents have to be listed, disclosed and inspected. Experts have to examine the subject matter, meet and report. Witnesses have to be interviewed and comprehensive statements taken. Supplemental experts' reports and witness statements are often required. Bundles of documents have to be prepared for trial and, even for a two-party action, at least six copies made (for each party's counsel and solicitors, the judge and the witness box).
This timetable does not allow for any pre-trial applications to the court, for relevant documents that have not been disclosed, or for security for costs, or for further evidence to be included or excluded or whatever.
Allowing for the fact that all those involved - clients, experts and lawyers - have other things to occupy their time, for most actions of any substance, a year seems barely adequate.
So why did the judge ask the question? Despite the impetus of the proposed reforms to the legal system proposed by Lord Woolf and others, the time to prepare a complex action for trial is unlikely to be greatly truncated. Conversely, there is no reason why litigants in straightforward disputes involving little in the way of expert evidence or documentation should not be ready for trial in a matter of weeks. Hitherto, both detailed and simple disputes have been held up waiting in the queue for a judge. The fact that it was a judge who posed my opening question is indicative of an increasing trend - that of a reduction in the amount of litigation reaching trial. Ironically, it is the judges who are requiring cases to be prepared more quickly because the courts are short of work.
The casual observer may consider this to be a jolly good thing but, as with all things, unrealistic deadlines are counter-productive. Nowhere will this be felt more keenly than in the timetables imposed for adjudication.
The clients who have bemoaned the fact that they must wait until the millennium for their trial will have cause to reconsider the wisdom of speedy justice when they are required to respond to a weighty, 10 lever- arch file claim within 28 days (to include weekends and bank holidays) of, say, 18 December.