The correct use of courts

Is football for the players or the payers? I once asked that of Billy Bingham, manager of Northern Ireland; manager, too, of Luton Town. I got a bit of a blank look. Is litigation for the players or the payers? I once asked that of one of Her Majesty's judges and I got a bit of a blank look from him as well.

Once, football was played for the benefit of the lads on the pitch. Not surprising. It was fun. These day, football is like litigation, it's there for the payers. But unlike football, litigation hasn't yet woken up to this fact.

Take the continuing case of Cunningham against architect Collett & Farmer. The judge said that case has had "a difficult procedural history". I bet it's been a nightmare for the payers. The trial has been adjourned on three occasions at the claimant's instigation. In the last year the claimant has instructed four firms of solicitors. Then in the first minutes of the first day of the trial, the claimant came up with a raft of amendments. Oh, lawyers and judges are first-class at grappling with all these procedurals arrangements, but I bet the parties have been bored silly.

When Luton Town started to play defensive football, I stopped going. Their soccer wasn't being played for the audience. Litigation is often a dull, negative game, too. Time and time again, the aim is to use the process to wear down the opponent. Time and again, litigation is begun before one side finds out what the other has to say. No wonder it takes an age and more to come to trial. We players have great fun investigating strengths and weaknesses after the writ has been issued, the court engaged. We do it in the court's time.

The solution isn't hard to find. We need to change the mentality. Change the culture. Don't engage the court until the arguing has been done and dusted. Make it one hell of a job to bring in something new - as long as the parties have had every opportunity to have their say to each other. Commercial people are perfectly able to have a sensible argument with each other, so long as the stonewaller is dealt with. And if dialogue doesn't work then the lawyers can get the dialogue going some more. Only then should the court be engaged. The different culture is to argue before engaging Her Majesty's judge. And by the way, that's what we are learning to do in adjudication.

Time and again, the aim of litigation is to wear down the opponent before even finding out what they have to say

Back to the case under discussion. Architect Collett & Farmer is being sued by the owners of Bengeo Hall because those owners became unhappy with aspects of the refurbishment works they were undertaking. The owners are now embroiled in various pieces of litigation arising out of these events.

When at last the trial began, counsel for the claimants proposed to re-cast its case. There was a brand new complaint, new allegations of breach of contract and negligence, a new case on causation of fact and new heads of loss. The other party baulked.

The court then had to ask what prejudice would be suffered by the party that wanted to amend if it couldn't, and what prejudice would be suffered by the party that didn't if it could, then to ask how the public interest would be affected. But the real test is to ask why all the new stuff wasn't canvassed before the litigation began. If the answer is limp, throw it out. Or send everyone away to begin again, with a costs penalty to boot. In adjudication, any new stuff is in danger of getting kicked out unless a new timetable can be agreed.

Now then, where did I hang those old boots and the tin of dubbin?