Putting a price on justice

The Chief Justice made several announcements in his speech yesterday but I thought the most important one had to do with costs. There is the perception that it is expensive to go to a lawyer as well as the (mis)perception that being on the winning side in a court case would mean reaping a windfall both for the client and the lawyer.

The cost of justice isn’t just about the due given to the aggrieved. It is necessary as well to ensure that what has been extracted from the losing party isn’t a pound of flesh.

In this case, very little light has been shed on the inflation of legal costs. Do winning parties really make exorbitant claims before the court? What are some of the most egregious cases and how many has the court come across in recent years? Have losing parties in civil cases been bankrupted by high legal costs awarded to the other party?

A Costs Panel has studied the issue carefully, said the CJ. Well, it would be good to share some data with the public on the abuse of this process.  It will also be good to explain how the judiciary decides on legal costs and how many appeals – both justified and unnecessary – on costs have been made in recent time.

The CJ announced some steps:

1. Can’t get greedy now

Warring parties will soon have to provide their estimates of cost when they file their written submissions close to the end of a trial in High Court and Court of Appeal.  “Because these estimates will be given at a time when the parties are unaware of the eventual outcome of the case, it is hoped that we might no longer see the tendency for successful parties to inflate their cost claims even as losing parties object vehemently to sums that they themselves might not have hesitated to claim had the shoe been on the other foot. ‘’ Ouch.

1. Learn to budget early.

Some cases in the High Court will be part of a pilot project in which the opposing parties have to exchange estimated cost budgets at the preliminary stages of the case. The trial judge will review the estimates, which will form the basis for assessing the costs to be recovered from the losing party. This sounds like a good idea although it would probably entail more work from the law firm (and more cost?). After all, people always ask for an estimate of services to be rendered and will kick up a fuss if the final bill is beyond the pale. Except that in court cases, the buyer (client) might well be in cahoots  with the vendor (lawyer) to put up a big bill to try their luck with the final decision-maker (the judge). Better that the judge has sight of the estimates early, so that he can decide if the “departures from costs estimates’’ in the final bill are justified.

c) No need for guesswork?

“Finally, we will publish a set of costs guidelines to facilitate the resolution of cases, reduce the need for taxation and discourage unnecessary appeals on costs. These guidelines resulted from a survey conducted by the Costs Panel  and were formulated by reference to the fees generally charged by small- and medium-sized firms. The taxing court will, of course, remain free to deviate from the guidelines depending on the particular facts of each case.’’

Question: What does the survey show? It is good to know upfront what are the costs involved but is this anti-competitive? Why SME firms only? Is it because big firms are more transparent about their fees? Or those who can afford to go to big firms don’t need guidelines?

By the way, the CJ also made other announcements.

BT went on how no new Senior Counsel was appointed (we have 54 now). You wonder why this is such important news that deserved front page treatment in BT. A reflection of the paucity of good senior lawyers? The old story of how so many “middle’’ lawyers have quit was raised again – three in four lawyers leave the practice in the first decade.  

Then there was the headline decided upon by Zaobao and TODAY on how more judges may be sitting on the Court of Appeal panel (from three now to five) as well as Magistrate’s Appeal (from one now to three) to hear “difficult cases’’. No, there was no example given of “difficult’’ cases or those of “jurisprudential significance’’ which might have flummoxed the court in the past.