Painstaking pitfalls

Our fly on the wall catches the end of a meeting between a frustrated chief executive and the senior partner of her law firm ...

Chief executive: So the Burkett case means the objectors to our development could have one last try to challenge the planning but you feel confident we will win. And Burkett means in future we won't have all these arguments over time limits on challenges to planning decisions – it's three months from the date planning permission is granted, yes?

Senior partner: Not entirely. The three month timetable is subject to the court deciding that there isn't a good reason for extending the period. One problem could be that vulnerable persons are occasionally selected as the challenger but ...

CE: Why is there always a 'but' with you lawyers? Our development has been delayed for more than a year, the build costs have already increased by £500,000, the legals are well over £150,000, and that's before we add on staff time and so on. Think of the housing that money could provide. What really annoys me is that waste was avoidable. The case which everyone thought set the limit at 6 weeks was in 1998, and the case about appealing, what's its name?

SP: Poh.

CE: How could I forget Poh. Poh was rubbished by their Lordships two years ago –

SP: Not the Lords, Privy Council.

CE: – same faces, different wigs – why, two years ago, didn't some bigwig, like the Lord Chancellor, the Master of the Rolls, the Minister of Justice –

SP: We don't have one. Some would consider it an oxymoron.

CE: – whoever, say Poh is pooh, six weeks is wrong, three months is right, instead of all that waste of time and money. It's not just our project, it's lots of others too. And it's not just planning. Look at the Home for Life litigation on care home closures disrepair cases for instance, and don't start me on TUPE or the rent increase row.

SP: Yes, what about the debate on transferring funds and when and how a charity can assist another charity in the group, a non-charity in the group, or a charity outside the group – and now we are warned about whether key workers are charitable!

Delays have pushed build costs up to £500,000; the legals are £150,000. Think of the housing that money could provide

CE: Typical lawyer, answering a question with a question.

SP: OK then, let's go back to basics. The English legal system still has an adversarial mindset despite efforts to change it. In other words, the Court decides between one party or another and the system is polarised to "win" or "lose" in each case. While most lawyers would like to use a particular case to establish a general rule, the system still doesn't allow them to do that.

CE: Why not?

SP: Because even in a test case, the court will only deal with the particular issues before the court on that case. Even if it gives a wider opinion it's not binding law except, broadly, at House of Lords level.

CE: But it takes so long and costs so much to get there. Why can't it be quicker?

SP: Despite attempts to change things, the system still places a premium on oral argument, so everyone has to be assembled at one place and at one time. The emphasis on advocacy means an elite of specialist lawyers and they cost money.

CE: On top of that we now have a litigation culture with lawyers knocking on tenants doors, "ambulance chasers".

SP: Well, if there were no disrepairs or negligence those lawyers wouldn't be in business, but I agree they can go too far.

CE: And the Human Rights Act – the lawyers charter – it seems even parliament isn't in control any more.

SP: The act is settling down now to a sensible balance. And elsewhere there are hopeful signs: the move to the partnering basis in construction and care services agreements, the increase in alternative disputes resolution, the readiness of younger lawyers to challenge old conventions and of course the frustration of politicians at the delays and costs. People are too frightened of the law – it only exists to serve society. It's up to the users to speak up for change.