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Lord Chief Justice calls for single regulator

Lord Thomas [1]

Lord Thomas; lawyers must be prepared for “radical changes”

In a major speech on the future of law, the Lord Chief Justice said last night that “there has to be a single regulator” for the legal professions.

Lord Thomas said he could not see any “practical” alternative, and he would be “very disappointed” if there was not a much simpler and cheaper system of regulation in 10 years’ time.

The LCJ also announced that, following a recommendation from the Legal Services Consumer Panel, he had set up a judicial working group to consider the wider use of McKenzie Friends.

Until now the leading advocate of a single legal regulator have been the Legal Services Board, whose chief executive Chris Kenny said last month that despite the government deciding no to go ahead with major reform at this time, the change would happen anyway [2] over a period of 10 years.

Delivering the Solicitors Association of Higher Court Advocates (SAHCA) Lord Slynn memorial lecture last night, Lord Thomas warned the profession that it needed to be prepared for “a number of radical changes”.

He made it clear that he believed that the Jackson reforms on their own would not be enough to cut the cost of litigation unless they were combined with “more rigorous control of procedure”.

In the future, Lord Thomas said the courts “should have the right to impose a truncated form of procedure” whether or not the parties involved agreed.

A combination of a much more unified form of procedure with a “more flexible approach to individual cases” would bring about a “very different form of litigation 10 years hence”.

ADR could no longer be looked on as “something that happens outside the courts” but judges would have to offer mediation as an option themselves. “We can’t only have one way of resolving disputes – namely a trial,” he said.

Lord Thomas said disclosure remained an “enormous problem”, particularly in fraud cases. It was “too early to tell” if the Jackson reforms would solve the problem, the LCJ said, and it would “take time for the judges to adjust to the new culture”.

Instead, he proposed treating disclosure in a “new way”, which would come as a “real challenge” to clients. “The panacea suggested by some of computerised control over disclosure is not an option, given its enormous cost and the ability of technology to produce even more documentation.”

Lord Thomas said he hoped the courts would move to a standard approach where parties either asked for specific documents or paid for what was produced in disclosure even if they won the case, and the documents were not used.

Referring to a speech he gave to the Society for Computers and the Law [3]last month, the LCJ predicted that there would be “very few” interlocutory hearings in the future where parties would need to come to court, though this would remain the case for trials.

Lord Thomas said reductions in legal aid had a “serious effect” on the ability of people to use lawyers, but lawyers should not forget that “in the present day litigation seems almost out of reach for those on modest incomes and many SMEs”.

He said that in a capitalist economy, the cost of legal services must be driven by the market, and the Legal Services Act was meant to bring with it some “creative destruction”.

The LCJ said this had a “very regrettable effect” in the closure of many law firms, but closures were not what he expected to see in the future, rather the “legal services market operating much more effectively”.

Lord Thomas said he was not sure if the new market would drive down cost, but he hoped it would, as lawyers moved away from the “billable hour” towards fixed costs.

“I cannot see why a trial can’t be done at fixed cost, especially if you rein in disclosure”.

He called for third-party funding to be explored “more readily” than in the past and for legal expenses insurance to be a “proper means of funding litigation”, just as it was in Europe.

The LCJ added that although lawyers should be prepared for radical changes, this would come about through a “continual process” rather than a “big bang”.