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Features
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 In January 2008, Mr Justice Lightman will retire after 13 years as a High Court judge. To the mediation community, Lightman J will be remembered, among other things, as one of the High Court's most outspoken, visible and fervent advocates of the process. Elsewhere, more prosaically, he will be remembered as the judge who labelled radio DJ Chris Evans a sulking, lying prima donna.
Now, with the same directness and precision, he turns his scrutiny on the legal system he has served throughout his career. His support for mediation stems from the belief that, parties ought not to be dragged into litigation 'if it is conceivably possible to avoid the experience.' He arrived at this view, he tells The Mediator Magazine, over the last ten years compelled by a steep and unaffordable rise in legal fees coinciding with the unprincipled withdrawal of government funding for litigation.
Lightman J's starting point is a concern that the ordinary individual's right to the protections of the civil justice system is blocked by cost and fraught with risk out of all proportion to possible gains. He delivers his verdict matter-of-factly, at high speed, with little trace of sentiment. It's not only a matter of covering your own legal fees, he says: 'If you fail to win, the risk is that you'll be wiped out.' He continues: 'I'm afraid I've seen so many cases in which parties that don't have legal aid have orders for costs made against them, and they and their families suffer the most dreadful consequences. They lose their homes, they lose everything they've got.'
It wasn't always so: previously in publicly funded cases orders for costs would not be made unless it could be shown that litigants had the means to meet them. In the absence of public funding, an order for costs is an order for immediate payment, and Lightman J has observed the tragedies they can cause for over a decade. To his credit he has used his position on the Bench to highlight the failings of the system, and criticised it with refreshing candour in speeches and to the newspapers over many years.
Lightman J is reluctant to attribute blame, but concedes he is stunned sometimes at the legal bills he sees. The Civil Procedure Rules dictate that judges have to assess costs at various stages in proceedings, and thus Lightman J has been in a privileged position to observe the dramatic escalation in legal fees over the last decade. 'In the ordinary way as counsel you only know what your own costs are,' he says. 'But when you're a judge you see what solicitors are charging and that is a new order of things.'
Justice for the rich
Statistics recently published in Legal Business magazine give an indication of the scale of the increase in fees over the last 15 years: in 1992/3 the combined revenue of the top 100 firms was £2.7bn; by 2006/7 this had grown to £12.25bn. The law is now big business, and Lightman J believes that the law has increasingly become a business instead of a profession.
The problems which flow from this mindset are acutely evident in litigation. Not only are legal fees beyond the reach of the ordinary litigant, Lightman J believes, but the way the system works at present means the rich now have a thumb on the scales of justice. 'If you are sued by somebody who instructs a top law firm and a top barrister you have two real problems,' he says. 'First, there can be no doubt that the quality of representation has a real impact on the outcome of litigation. There can be no doubt that the better represented you are the better chance you have of success because a judge is in no position to adjust the balance to any material extent. If you've got the better lawyer he'll be able to obtain and present more convincing evidence, which is why litigants pay a great deal to get the top lawyer. Those that can't afford it are at a serious disadvantage.'
'Secondly,' he continues, 'if you're suing or being sued by someone represented by one of the top firms, it may be that you can control your own costs by going to a modest firm of solicitors and a modest counsel, but if you lose, you're exposed to paying on a much grander scale the costs, or a proportion of the costs, of the other side.' And with London's five so-called Magic Circle law firms each reporting average profits per equity partner in excess of £1m for 2006/7 the scale of these costs is apparent.
Lightman J concludes that 'It raises a very serious question as to how far the risks of liability for the costs of the other side are an impediment to access to justice.'
Palliatives for the poor
In a keynote speech made at a reception for mediators at a top London law firm this summer, Lightman J made plain his view that, 'this state of affairs has brought to the fore the crucial need for mediation as a palliative - as the only available recourse of those who cannot afford the costs and risks of litigation and the chance of the approximation to justice which it affords.'
Mediation, however, has not had the full backing of the Court of Appeal which (wrongly in Lightman J's view) placed a number of obstacles in the path towards its more widespread adoption. Lightman J was strongly critical of aspects of the Court of Appeal's decision in Halsey v Milton Keynes [200] 1 WLR 3002. The Halsey decision in 2005 was a setback for mediation, and the Court's reasoning something of a mystery. The Court held that forcing parties to proceed to mediation against their will would contravene their right of access to the courts under Article 6 of the European Convention on Human Rights. Secondly, though orders for costs may be made against parties who unreasonably refuse to mediate, Lightman J also made the point that the Court of Appeal had placed the burden of proof of unreasonableness on the party seeking the order for costs, and 'not on the party against whom the sanction is sought to prove that his refusal was reasonable.'
To the enormous satisfaction of those present, Lightman J went on to describe these propositions as 'unfortunate' and 'clearly wrong and unreasonable.' The Court of Appeal, he said, should have recognised that mediation does not interfere with the right to trial. And that the Court should have had its attention drawn to the practice of forcing parties to mediation in the US, the Commonwealth and in the Family Division. Lightman J said it was a 'commonsense proposition' that the party which had decided not to proceed to mediation and knows the reasons for their decision should be required to explain and justify his reasons for the refusal.
Although Lightman J's candour surprised bystanders, back in his chambers some weeks later he is keen that his comments should be viewed as a reappraisal rather than an attack: 'It just seemed to me,' he says, 'that the time has come for a review of the observations made by the Court of Appeal.'
His view of civil justice at the start of his final term on the Bench is uncompromising: 'no thinking person can be but embarrassed by the State's lack of provision of a means of access to the court,' he says. Mediation is the next-best alternative, he believes, and concludes that, 'No thinking person can be but disturbed by the imposition of the twin hurdles to mediation which the decision in Halsey creates.'
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