Change is often difficult to accept. It can feel threatening and often creates resistance, particularly if the change is unwanted and perceived to be detrimental. Therefore, it is natural to find a flurry of negative reactions from lawyers to the Law Society Gazette’s reporting on the Court of Appeal’s judgement in the case of Churchill v Merthyr Tydfil County Borough Council (CA-2022-001778) on 29th November 2023. One anonymous commentator even referred to Sir Geoffrey Vos’s judgement as “Ivory tower rubbish”. https://www.lawgazette.co.uk/news/knotweed-judgment-should-help-resolve-disputes-faster-with-less-expense/5118072.article#commentsJump. But, with the benefit of calm reflection and a wider perspective is that so?
As a lawyer, I value the judicial process. In cases where every opportunity has been taken from the outset to reach a reasonable outcome, a judicial hearing and an imposed order are an essential option of last resort. However, as an experienced litigator, I know, like all litigators know, that I relinquish control over the outcome of a case the moment it falls within the remit of a judge. Consequently, the best odds for a favourable outcome that I can ever give a client, regardless of the law, is circa 65% as uncertainty exists always in any judicial interpretation. Therefore, why go to court unless absolutely necessary? After all if I do and the odds fall against me, I could be on the receiving end of some “Ivory tower rubbish” and, just like the lawyers for Mr Churchill, have to justify my recommendation to litigate to a far from happy client.
I left litigation and moved to mediation in 2009 not because I didn’t acknowledge the need for the judicial system, but because I wanted my clients to keep control over the outcome of their disputes rather than abdicating responsibility to the court. A client who maintains agency over outcome and attends mediation has an 80% chance of reaching success and also benefits from a process which, at circa £5,000 for a day’s lawyer-led mediation (divided equally between the parties), is a fraction of the cost of judicial proceedings even in the lower courts. From a client’s perspective, what’s not to like? And from a lawyer’s perspective?
Lawyers who have referred work to me for mediation over the years have always been the more enlightened and “cutting edge” in the profession. They have seen the opportunity mediation brings to them, their clients and their legal practice. They know that a happy client is one who has been supported to achieve the best possible pragmatic outcome and even in the 20% of cases where mediation does not work, recommending mediation early in the process provides the lawyer with the reassurance of knowing that even if their client fails to reach a resolution through mediation, they have truly done their best to minimize litigation costs and swiftly conclude the case. I doubt Mr Churchill feels he received such exemplary service from his lawyers.
