Lord Neuberger MR recently gave a speech to the RICS conference on dilapidations. This conference focuses on dilapidations in commercial property and the speech partly discussed the forthcoming dilapidations pre-action protocol and so might be thought to be of litle interest to readers of this blog. However, the Master of the Rolls made some comments about pre-action protocols in general, mediation, and the use of experts which are worth noting.

Pre-Action Protocols
As the chair of the Civil Justice Council the Master of the Rolls’ views on pre-action protocols are always of interest as it is one of the key bodies which play a part in their creation. The MR noted that the protocols have grown outside their original aim which was to streamline litigation and ensure that parties presented their cases openly at the earliest opportunity and have become somewhat wordy and excessively prescriptive, and that they have become a new stick with which lawyers for the opposing sides lay into each other. Having been a happy wielder of that stick myself I am (guiltily) forced to agree but will state in my defence that the courts play a part too in that they have been too prepared to accept argument on costs which is based on technical and minor breaches of the protocols. So, when the MR stressed the importance of the protocols but also states that they are not a licence for “litigation by numbers” or a permission for lawyers to “turn off their brains” I was certainly interested. His suggestion that:

Further, even where your opponent wrongly fails to comply with a protocol, you should not treat it as a weapon to gain an advantage, although I can well see that the mentality of
litigation makes the temptation hard to resist. Normally, you should simply ensure that the failure is pointed out to your opposite number promptly and, if appropriate, your opposite number should then promptly remedy the failure.

should be treated by all litigation lawyers as a warning to mend their ways and adopt a more realistic attitude to the protocols lest someone else does so for us. The MR said that if the current review of the protocols by the CJC is motivated by a view that they need to shorter and simpler. It will be interesting to see if that review does actually lead to a downgrading of their status and a general reduction in the level of detail they contain.

Mediation
The MR asserted his commitment to mediation but he also stated that he does not view it as a universal panacea and that its precipitate use can lead to increased costs and bad feeling where it fails. This puts him slightly at odds with the government and even with Lord Phillips who have both suggested that mediation should be compulsory or nearly so. I find myself on the fence on this issue although as a practicing mediator I am almost honour bound to fall on the side of compulsory mediation. I certainly cannot agree with the MR’s view that many parties settle at mediation due to exhaustion and having spent too much on the mediation process. A well conducted mediation settles because the parties see the value in achieving a sure settlement on the spot rather than running the risks of continuing to litigation.

Experts
One of the most interesting items mentioned by the MR is “hot tubbing”, which us currently being piloted in Manchester. For those of you who are now entertaining schoolboy-like grins at the thought of bewigged judges sitting in warm soapy water in compromising positions then I say shame on you, that only happens in Italy (allegedly). Hot tubbing is not some new and disturbing practice among lawyers but actually a rather odd name for something fairly mundane. It seems the law is now adopting the method of using an exotic sounding name for the everyday in order to make it sound more impressive. Hot tubbing is a round table meeting of experts and lawyers chaired by a judge which seeks to examine expert evidence in a non-adversarial manner. This is popular in Australia (you are grinning again!) where it is held to be a more valuable and productive method of dealing with competing expert evidence and one that is possibly more appropriate and respectful to the experts themselves. It is however a more difficult and challenging process for the judge as they do not fulfil the more traditional role of sitting back as an umpire while the lawyers savage one another (and the experts) before tidying away the toys and mopping up the blood. Instead they are required to chair a seminar-style discussion in a more interventionist manner moving along a structured agenda. Naturally, this requires a significant level of judicial skill and training.

Experts As Witnesses
Slightly surprisingly, the MR kicked off this part of his speech by confessing to his surprise at the decision of the Supreme Court in Jones v Kaney, although he quickly recovers to say that he considers it to be the right decision. He certainly applies a cautionary note though for any litigant who is thinking of suing their expert by making clear that the courts should, in his view, apply a fairly narrow gateway to such claims by making a clear distinction between an honest mistake and negligence on the part of the expert.

Contingency Fees
Finally, the MR mentions contingency fees. He notes that the Jackson reforms will allow contingency fees for solicitors for the first time and also mentions the views of the Court of Appeal in Factortame (No 8) which stated that they might be permissible but that the court would almost certainly consider expert evidence given by an expert being paid on a contingency fee to be tainted. The MR also noted that the current version of the CJC protocol on the giving of expert evidence in civil cases forbids the oayment of contingency fees but He suggested that if lawyers can be paid on a contingency fee basis then it is high time that experts were permitted to be as well and that this element of the experts protocol may need to be amended. Some of his thoughts in this area are undoubtedly a development of his thinking in the case of Sibthorpe & Morris v LB Southwark (which we reported on here). However, it is clear that the MR is a realist in relation to the payment of contingency fees and is prepared to accept their existence.

This speech is a key indicator of how the senior members of the judiciary see aspects of the procedural law developing and should be considered by anyone involved in litigation. Oh, and the dilapidations protocol should be in place by the end of the year.