"Reform" of legal fees - four centuries of chicanery ... Tulkinghorn awards prizes for "reforms" that increase legal costs ... Jacking-up revenue by replacing "necessary or proper" costs with "fair and reasonable" costs ... Looks like the Circumlocution Office has got hold of the Marfording Report
In several speeches, including this one, the former Chief Justice of NSW, J.J. Spigelman, has quoted a New York senator on the subject of "moral reformers".
"When Dr Johnston defined patriotism as the last refuge of the scoundrel, he was unconscious of the then undeveloped possibilities of the word 'reform'."
The CJ did not overtly apply the quote to legal reformers, but it applies to them too.
When pressures to reduce fees become critical, "suitable or sensible" reform is proposed.
Once implemented, lawyer incomes do not reduce. Ideally, they increase.
A book listing all the fee "reform" chicanery over the last four centuries would need to be of encyclopaedic proportions.
Top prize for increasing fees by way of "reform" must go to Northern Ireland's legal profession.
A VLCC is a very big ship designed to hold a vast amount of crude oil.
It is not to be confused with a VHCC which in Northern Ireland means (or meant) a Very High Cost Case - funded by legal aid.
A VHCC is of similar dimensions to a VLCC, but is allegedly filled, not with oil, but with lawyering activity involving one court case.
"Very High Cost Cases were set up to control costs but appear to be doing the opposite."
At the end of this article is a "shocking dossier on a system's soaring costs", which explains nature and extent of VHCC chicanery.
"Woolf": reforms successfully raised feesSecond prize would have to go to the English "Woolf" civil litigation reforms.
While the Woolf consultations and reports were of VHCC dimensions, the results (in terms of reducing fees) proved to be of much lesser dimensions:
Neil Andrews, of the University of Cambridge, writes:
"The 'Woolf reforms' (1998) had been expected to alleviate the problem of the high cost of civil litigation. But the situation has not improved."
Once it had become apparent to everyone that the fee reform aspects of the Woolf reforms had gone nowhere or increased fees, another (cover-up) reform exercise (this time by Lord Jackson) was called for.
It resulted in the Review of Civil Litigation Costs report 2010.
This reform exercise followed a popular smokescreen ploy: make the reform report so huge that no-one can really read it all.
In 2009 The Lawyer said:
"Lord Justice Jackson gave us all some weekend reading last Friday with a 1,000-page preliminary report on his review of civil litigation costs. And what a document it is. 'Oh God! It's so big,' declares Edwin Coe litigation partner David Greene."
The Lawyer also said:
"Deep down in the detail there are some real hints about how he sees the litigation process developing ... Costs capping would appear to be rejected."
Jackson: reformed the Woolf reformsJackson is well on track to becoming another Woolf.
Third prize would have to be shared between NSW (Legal Profession Reform Act 1993) and Queensland (Civil Justice Reform Act 1998).
NSW pioneered the change and Queensland followed. These "reforms" got rid of taxing officers and also got rid of prescribed scales of cost.
"Those officers were public servants, often as high as Registrars and Deputy Prothonotaries, and they taxed Bills of Costs prepared under the then applicable and strictly enforced cost scales. Under that taxing system not only was each item carefully examined and dissected but often items were completely 'taxed off' or partially "taxed off" on the basis that the item claimed was not 'necessary or proper' for the conduct of the matter."
See Law Society of NSW v Gallagher.
Under the reforms "necessary or proper" costs became "fair and reasonable" costs (as decided by private lawyers, not taxing officers)
There are no figures from NSW, but for Queensland, prior to the "reforms":
"solicitor's bills that [were] filed with the Taxing Officer and taxed were reduced by an average 31.28% for the period 1993-1997."
The Judicial Commission of NSW puts the "reforms" this way:
"Costs were to a large extent deregulated, so that court costs scales were abolished ... The old system of taxation of costs by the courts was replaced with a new system of assessment by costs assessors."
The NSW Administrative Decisions Tribunal said in 1999 that:
"The last concept, 'fair and reasonable', has resulted in a considerable change in the method of costing. The standard of proof is now much lower because the assessment is based on reality and the 'coming together' of solicitor/client costs and party/party costs. The assessor, with his/her experience, looks at the reality of actually conducting a matter. The result is that the successful party can now recover most of their reasonable costs instead of part only of an outdated scale."
"Reasonable" now means reasonable according to a private sector lawyer.
Beside all those major reforms of fees there have been numerous little "reforms" to increase fees. For example:
"A new set of [pleadings] rules was introduced in [South Australia] in 1987 ... Further amendments were made in 1993 ... Far from producing reform, the new pleading rules have been employed as tactical weapons and as a means of oppressing opponents. Costs have increased without any consequential benefit to litigants."
These little reforms deserve consolation prizes.
Legal fees reform exercises remind one of Charles Dickens' Circumlocution Office, as explained in Little Dorrit.
"Whatever was required to be done, the Circumlocution Office was beforehand with all the public departments in the art of perceiving - How Not To Do It. Through this delicate perception, through the tact with which it invariably seized it, and through the genius with which it always acted on it, the Circumlocution Office had risen to over-top all the public departments; and the public condition had risen to be - what it was."
In NSW a complete set of blueprints exist for proper civil litigation (including costs) reform. They are contained in the Marfording Report.
The Circumlocution Office
The report contrasts (efficient) German litigation procedure with its (inefficient and expensive) NSW counterpart.
Incidentally, to those who say that one can't simply transplant legal procedures from one culture to another, a huge number of books and articles say that one can and, indeed, transplantation seems to be the most common way legal reform is achieved.
The last thing that the Attorneys General of NSW and the Commonwealth (and their Circumlocution bureaucracies) want are questions such as "why don't you implement the Marfording report recommendations?
So the Australian legal troublemakers at FLAC (For Legally Abused Citizens) wrote and asked the NSW and Federal AGs what they intended to do.
The Federal AG's Circumlocution Office reply included, "thank you for drawing our attention to this report", which seems to imply they hadn't been doing anything with it.
The office implied that its Strategic Framework for Access to Justice will fix everything.
The emphasis on "Access to Justice" is fascinating, because there exists impeccable research (The Rule of Law Index 2011) that grades 23 high income countries in terms of how well they provide access to civil justice.
If a Federal AG wanted to improve access to civil justice the only thing that needs to be done is to adopt the German system. Indeed, the only system that provides better access to justice is Norway.
Australia ranks 13th out of the 23, the US 20th.
World Justice Project - Rule of Law Index 2011 - see page 113.
Annette Marfording: blueprint for civil litigationThe Marfording report focussed on NSW litigation, so the NSW AG had to work a bit harder on his "How Not to Do It" response.
The AG's office said their were "limitations" to the Marfording study and "the legal systems of NSW and German courts are different".
This is Circumlocution Office reasoning at its very best: we're not going to adopt their system because it is different ... duh!
Close behind in circumlocutory excellence was the response that we don't need reform along Marfording (2010) lines because we did that in 2005, and anyway we are in the process of reforming those 2005 reforms.
In 2000 a president of the Queensland Law Society, Raoul Giudes, after referring to a need for reform to be "sensible", said:
"We must ensure the government's future reform proposals do not threaten the viability of law firms , which could restrict access to justice for Queenslanders.''
'Solicitors vote for status quo' Courier Mail, (Brisbane) July 13, 2000
Access to justice is linked to law firm profitability? More of one means more of the other?
I don't think the Germans would swallow that one.