Not all change is good.

Some improvements don’t always make things better and in some cases, we actually make it harder.

I’m old enough to remember what the litigation world looked like before the Court Procedure Rules were introduced in 1999.  I know I don’t look it, but that’s just down to a great beauty regime, not to mention regular trips to the gym.

Nevertheless, when I qualified, the court procedure landscape looked very different.

We talked about F&BPs (further and better particulars) but now we have the much less sexy Part 18 request.

We had Writs rather than Part 7 and Part 8 claims.

Claimants were Plaintiffs.

And witness statements were affidavits, which had to be sown with green tape – and yes, I have actually sown affidavits, and sealed them with a red dot.  And not because I’m that old, but because I started that young!

Most of the changes were treated by a degree of suspicion by many of my colleagues, particularly the more senior ones who were already struggling with technology and the fact that they were now required to do CPD training which they considered was beneath them.  I was young enough to recognise the benefits of change, although I found (and indeed still find) some of the changes to have been change for the sake of change.

Nevertheless, one of the things that many of us wholeheartedly embraced in the new rules was Part 36, not just the rule itself, but the principal.

For those of you who are mercifully unfamiliar with the intricacies of the legal system, let me elaborate.   In the old days, we were very limited in our options if a party wanted to try to settle, especially if you wanted to have any protection on costs if the other side didn’t accept your offer.  In my view, Part 36 didn’t just encourage the parties to try and settle, it changed the whole mindset about settling.  In the old days, you didn’t make an offer to settle, because it made you look weak.   The introduction of Part 36 actually made it dangerous for you not to try and settle.  It also enabled the Claimant/Plaintiff to make an offer, which was unheard of and revolutionary then.

Unfortunately it’s not all good news.

In it’s rush to encourage everyone to settle and not fight (perhaps as a way of dealing with the over burdened courts) the legal system has allowed (or possibly encouraged) Part 36 to evolve into an area of law of it’s own.  Cases are fought (and often won or lost) just on whether the part 36 rule was properly applied and if so, when.  Timing, wording and responses to part 36 offers can result in more satellite litigation than the case itself.

You may think that this is going to lead me to encourage you to talk to me before you make a part 36 offer to make sure you get it right.

Actually, I’m going to encourage you to talk to each other before you even get that far.  If the case is capable of settlement (under part 36 or any other of the mechanisms available to you) then it should be possible before legal proceedings are even issued.  Formal or even informal mediation is available to everyone and the sooner you do it, the sooner you can end up falling down the black hole that litigation can become.  It may pain you to do a deal with the other side, but it’s a lot less painful (and considerably cheaper) than the fight can be.

If that is something that you’d like some help with, let me know and I’ll drop you a line as soon as my spin class is over.

Kleyman & Co Solicitors.  The full service law firm.  Keeping healthy and helping your bank balance stay healthy too.