'Arbitrate, Don’t Litigate'

Jonathan Haydn-Williams' article was recently posted on the website of the Chartered Institute of Arbitrators at the following link, www.ciarb.org/news/ciarb-blog/arbitrate-dont-litigate.php. It suggests a solution to the difficulties facing anyone seeking to bring a claim of less than £1/4 million against banks, financial institutions, insurance companies and the like.

It is said that, many years ago, a disgruntled litigant used to walk up and down in front of the Royal Courts of Justice, wearing sandwich boards declaring "Arbitrate, don't Litigate". I don't know what bitter experience led him to declare his preference for arbitration in that way, but I suspect that, were he still alive and litigating today, the problems caused in the last year by some of the Jackson "reforms" would have led him to dust off his boards and head for the Strand.

It's not that all the Jackson changes are bad. The introduction of pre-CMC disclosure reports and the menu of different disclosure options offered to the parties and the courts seem good ideas which, if well applied in practice, could result in more cost effective use of disclosure. Other changes, however, are flawed and have been made worse by courts not practising what they preach in applying the new rules in a disproportionate manner, whilst in the next breath criticising parties and their lawyers for not behaving proportionately.

When Andrew Mitchell uttered the "F" word (but not, he says, the "P" word) in Downing Street after a stressful day in the office, he unleashed chains of events which have led to the "F" word being uttered in other locations by politicians, policemen and lawyers alike (especially solicitors who have just missed deadlines by only minutes).

The decision of the Court of Appeal to refuse an extension of time to Mr Mitchell's libel lawyers for lodging a costs budget has achieved notoriety and is not in need of repetition here. What is less clear, and likely to be a source of uncertainty and satellite litigation for a long time to come, is whether that "one strike and you're out" approach is to be replicated when other deadlines are missed for the first time, perhaps by a short margin and with reasonable excuse. An outbreak of common sense amongst some of the first-rung judiciary is welcome, but does not remove the uncertainty.

Costs budgeting may not be a bad idea in principle, but a ruthless attitude to its enforcement is not the way to turn it into a successful policy. The...