Legal Aid

Master of his domain

PUBLISHED April 21, 2006

In an exclusive interview with the Gazette, the new Master of the Rolls, Sir Anthony Clarke, sets out his stall on soaring litigation costs and the legal aid budget. Rachel Rothwell reports

For the head of the civil justice system, Sir Anthony Clarke is not what one might expect. Far from the stereotype of an austere judge, he is jovial, accessible ? ?avuncular?, as one colleague describes him. At times, he is also surprisingly frank.

Sitting in his roomy office, tucked away along a labyrinth of red-floored corridors deep inside the Royal Courts of Justice, he recalls being called in to be told that he had got the job as the second most senior judge in the country (the role has moved up a notch now that the Lord Chancellor is no longer classed as a judge).

?I did not have the faintest idea what the meeting was about,? he chuckles. ?In fact, I thought it was a bit inconvenient that it had been arranged at lunch-time.?

Apparently the Master of the Rolls position does not come with a job description. ?There was no explanation about what the job was, what I was expected to do ? I was just expected to know. There was not even any mention of salary.?

Sir Anthony has had a high-flying judicial career since being appointed to the High Court bench in 1993. He succeeded his old pupil master, the late Sir Barry Sheen, as Admiralty Judge that year, and sat in both the Commercial Court and Crown Court before rising to the Court of Appeal in 1998.

The following year, Deputy Prime Minister John Prescott asked him to conduct the Thames Safety Inquiry. He then briefly caught the media limelight in 2001 when he produced what was widely received as a hard-hitting and thorough report into the collision between the pleasure cruiser Marchioness and dredger Bowbelle. The report was forthright in its criticism of the Bowbelle?s captain ? who was found to have been drinking earlier that day ? as well as the Department of Transport and the Ports Authority.

It is evidence that despite his pleasant demeanour, Sir Anthony is not afraid to take a hard stance when he feels the need ? which may be why some solicitors are a tad nervous over what he is planning to do in relation to their costs.

The subject is certainly on his mind. He says: ?The most important issue that the civil justice system needs to worry about is control over costs. I worry because litigation is becoming more and more expensive. Although the Woolf reforms have been very positive in many ways, one of the ways they have been less successful than Lord Woolf had intended [is] that the overall cost of civil litigation has not come down very much. The adversarial system is an expensive way of proceeding.

?Unless you are an extremely rich individual, a corporation or an organ of the state, no one can afford to litigate.?

Sir Anthony is alarmed by the diminishing nature of the civil legal aid budget. He says: ?Legal aid has been radically reduced over the last few years. In the civil [system], we are regarded by the government and the Legal Services Commission as the poor relation? the real problem is the failure of the government to date to control criminal legal aid. We are hoping that Lord Carter will be able to provide a framework for a solution but, if he does not, then there are serious problems because the overspend of criminal legal aid has put appalling pressure on the system, with the result that costs are having to be cut in the next financial year, including the cost of operating the civil court.?

He adds: ?Lord Carter has not yet given any figures. He has provided the envelope, but what will go in it is yet far from clear. Only when the criminal legal aid budget is under control will it be possible for the Department for Constitutional Affairs to return to a sensible budget. But we can?t go on with the lack of investment in the civil justice system.?

The lawyers? grapevine has it that ? as chairman of the Rules Committee ? the new Master of the Rolls is going to be ?radical? on costs. He is certainly willing to look at all the options available, but his comments imply that he would not impose a regime that was out of kilter with what lawyers, funders and litigants wanted.

He says: ?It is important [to be open-minded]. You have to consider both the claimant?s and defendant?s interests. The defendant?s interests should not be forgotten, because after all, in the case of insurers, it is the consumers who pay through their insurance premium. Proportionality is the name of the game.?

On fixed fees, he says the current rules for road traffic cases worth less than ?10,000 that settle pre-issue represent a ?very good system? and he sees no reason why it should not be extended to employers? liability cases, and to the period after issue and before trial ?by agreement in the market-place?. He adds: ?The best way is to have discussions across the industry.?

Sir Anthony says he is interested in proposals for costs budgeting and enforceable estimates, though he sees some practical difficulties, but he is ?less enthusiastic? about contingency fees. On conditional fee agreements, he says they are ?working well?, but adds: ?Where I worry [is] about 100% uplift. When they first started, the uplift was more in the region of 25%.?

Sir Anthony says he was pleased to discover that, on appointment to the role, he became chairman of the Civil Justice Council. He speaks highly of the council?s recent ?big tent? costs forum as a good way of measuring reaction to proposals among those in the market ? ?I think they call them stakeholders? ? and praises similar, smaller-scale initiatives that he has attended in the housing sector. ?I suppose you would call that a small tent.?

When it comes to controlling costs, he sees good case management as essential ? and is all in favour of judges toughening up on this: ?Efficacy depends on tough case management. It?s the role of the Court of Appeal to support judges who make robust case management decisions? [judges] are gradually getting the idea that identifying the issues and narrowing points is the name of the game. It is also partly the documentation [that is the problem]. But on the whole, judges try pretty hard. That said, I am not suggesting they are all terrific.?

He agrees that limiting documentation, as recently suggested by others, could be one solution to reducing costs: ?The amount of disclosure has been one of the banes of modern litigation. The burden of disclosure can be very great? we should be trying to limit that as much as we can. Lord Woolf has already taken some steps there? but we could narrow it more because the cost and time spent is disproportionate.?

In relation to the Commercial Court, the Master of the Rolls says he understands commercial lawyers? concerns that St Dunstan?s House ?is not a great advert for a top place [for foreign litigants] to conduct substantial litigation?. But he adds: ?The Commercial Court has been a terrific place for ?UK Plc? as some people call it, and up until now has survived because there is a great deal of legal expertise in London. Some of the big City firms know more about commercial litigation than anyone else in the world, and the commercial judges have been very strong over the years. The Royal Courts of Justice have some Dickensian aspects to them, and this new building will be something to be proud of in the 21st century.?

Indeed, it seems Sir Anthony has a taste for the modern when it comes to legal architecture. On the planned supreme court, which will be sited in Middlesex Guildhall, he says: ?I see the logic of the supreme court being transferred out of the House of Lords. I think history will show that the supreme court was a good idea. But I would have liked a good modern building that we could have been proud of for 100 years ? rather than that gloomy Gothic building.?

Not one to fear change, he also regard
s the new constitutional reforms introduced this month as positive, particularly in relation to increasing diversity on the bench. Although he freely admits that his own recent promotion was done under the old ?tap on the shoulder system? ? and he does not anticipate that method for selecting his successors changing in the foreseeable future ? he welcomes the new appointments processes being introduced for judges. However, he says the new Judicial Appointments Commission has ?a gargantuan task, very daunting?. He would like to see more solicitors on the bench as they have ?a great deal of experience and expertise? to bring to bear.

The Master of the Rolls may be an influential position, but it seems the title can lead to even greater things. The last three Lord Chief Justices ? Lords Phillips, Woolf and Bingham ? all succeeded to the title from his office. Would Sir Anthony like to follow this path himself?

?I couldn?t answer that,? he says. ?For the moment, I am still trying to work out what the Master of the Rolls? job is.?