12 Dunnett v Railtrack Plc (Costs) [2001] EWCA Civ 303.
13 Dunnett v Railtrack Plc (Costs) [2001] EWCA Civ 303, para. 14.
14 The main advantages of mediation over litigation have been aptly summarized by SIR MASON A N-THONY,Mediation and Art Disputes, Art Antiquity and Law, Vol. 3, 1998, p. 31: (i) Confidentiality:
“One of the main advantages”, although unless this is expressly stipulated its effectiveness cannot be guaranteed. (ii) Economy: “Perhaps its greatest advantage”. The great value of this feature is that it (a) enhances the resources available for settlement, (b) reduces the prospects of an inequitable settle-ment forced on one party by the expiry of funds, (c) removes the threat of a party’s not recovering costs and (d) makes money available for concurrent remedies. (iii) Ductility: Mediation offers the
A. A Rolls-Royce service?
Litigation may be expensive but this does not guarantee a high quality of service. Every lawyer in this field can cite examples of blunder, ignorance, eccentricity, and neglect - invariably on the part of someone else. Clients do not always get what they pay for and advisers do not always get the necessary support from their clients. The results can in-clude avoidable defeat, unreliable precedent, wasted costs, and a costly corrective trip to some appeal tribunal.
This can be seen from two cases among many that have followed the heartbreaking trail from the court of first instance to the Court of Appeal.
In Tandy v Kidner15, members of a family were disputing the entitlement to the proceeds of certain letters written by T. S. Eliot, which the defendant Edward Kidner had already sold to the British Museum. The trial judge wrongly identified the defendant as a witness whose evidence was tainted by a history of alcoholism and erratic behaviour. In so de-scribing the defendant, the judge was confusing him with his son Timothy, who had earlier “clammed up” under hostile examination, had absented himself from court on the following day and had thus declined to testify further. When counsel for Edward Kidner pointed out to the judge the error in his identification, the judge still failed to correct his earlier remarks about the defendant’s shiftiness and deviousness under examination. The appellate court expressed astonishment and virtual disbelief that the judge at first in-stance could have gone so far wrong, especially in a reserved judgment, and it held that only a new trial could correct the deficiencies of the last one.
prospect of a resolution other than on “all or nothing” terms. For example where there is more than one cultural object at issue a settlement might be based on a shared distribution. An interesting com-parable proceeding was the Tate-Griffier case before the Spoliation Advisory Panel, where the grant of an adjustable ex gratia money fund together with public commemoration of the family’s loss ena-bled the resolution of the claim to be fine-tuned to the particular justice of the case. (iv) Communi-ty/Collegiality: Mediation is “better adapted to cultivating a co-operative approach”. It draws the par-ties more directly and personally into the dispute resolution process, thus improving the chances of a congenial outcome and a more lasting relationship post-settlement. (v) Transparency: “Mediation will inject a dosage of reality”. It can lead the parties to a better and more subjective appreciation of the strengths of their own positions and cases. This can be especially helpful in cases of art expert ev-idence; a skilled mediator will identify and reduce the significance of this.
15 [1996] unreported 1st March, CA; noted by PALMER NORMAN/CHESTERFIELD WINSTON, Family Disputes over Cultural Material: Tandy v. Kidner, Art Antiquity and Law, Vol. 12, 2007, p. 305.
tion should never have got under way – the only thing that should could and should have been offered by the court is Alternative Dispute Resolution. Further, once underway it could and should have been resolved by constructive agreement – and not countered, as has been the case, by the Defendant's aggressive short-sighted intransigence. Through-out this family has needed – and still needs – constructive disinterested help: is it too large to find and act upon such?”
Similar sentiments were expressed by Brooke LJ in the judgment that preceded Neave v Neave12. In his view a mediator can accomplish results that are beyond the reach of lawyers and courts alone: “Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve”. Brooke L. J. further pointed out that some claimants feel driven to pursue litigation simply because they want someone in authority to respond seriously and sym-pathetically to their grievances. They want to be treated with respect. A defendant who ignores the prospect of, for example, a conciliatory expression of sorrow or an open-minded meeting to explain what happened does so at his or her peril.
“This court has knowledge of cases where intense feelings have arisen, for instance in relation to clinical negligence claims. But when the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are beyond the powers of the court to provide. Occasions are known to the court in claims against the police, which can give rise to as much passion as a claim of this kind where a claimant's precious horses are killed on a railway line, by which an apology from a very senior police officer is all that the claimant is really seeking and the money side of the matter falls away.”13
The perils and drawbacks of litigation are well known. They have been described in numerous studies14. For the present, only three points are made.
12 Dunnett v Railtrack Plc (Costs) [2001] EWCA Civ 303.
13 Dunnett v Railtrack Plc (Costs) [2001] EWCA Civ 303, para. 14.
14 The main advantages of mediation over litigation have been aptly summarized by SIR MASON A N-THONY,Mediation and Art Disputes, Art Antiquity and Law, Vol. 3, 1998, p. 31: (i) Confidentiality:
“One of the main advantages”, although unless this is expressly stipulated its effectiveness cannot be guaranteed. (ii) Economy: “Perhaps its greatest advantage”. The great value of this feature is that it (a) enhances the resources available for settlement, (b) reduces the prospects of an inequitable settle-ment forced on one party by the expiry of funds, (c) removes the threat of a party’s not recovering costs and (d) makes money available for concurrent remedies. (iii) Ductility: Mediation offers the
A. A Rolls-Royce service?
Litigation may be expensive but this does not guarantee a high quality of service. Every lawyer in this field can cite examples of blunder, ignorance, eccentricity, and neglect - invariably on the part of someone else. Clients do not always get what they pay for and advisers do not always get the necessary support from their clients. The results can in-clude avoidable defeat, unreliable precedent, wasted costs, and a costly corrective trip to some appeal tribunal.
This can be seen from two cases among many that have followed the heartbreaking trail from the court of first instance to the Court of Appeal.
In Tandy v Kidner15, members of a family were disputing the entitlement to the proceeds of certain letters written by T. S. Eliot, which the defendant Edward Kidner had already sold to the British Museum. The trial judge wrongly identified the defendant as a witness whose evidence was tainted by a history of alcoholism and erratic behaviour. In so de-scribing the defendant, the judge was confusing him with his son Timothy, who had earlier “clammed up” under hostile examination, had absented himself from court on the following day and had thus declined to testify further. When counsel for Edward Kidner pointed out to the judge the error in his identification, the judge still failed to correct his earlier remarks about the defendant’s shiftiness and deviousness under examination. The appellate court expressed astonishment and virtual disbelief that the judge at first in-stance could have gone so far wrong, especially in a reserved judgment, and it held that only a new trial could correct the deficiencies of the last one.
prospect of a resolution other than on “all or nothing” terms. For example where there is more than one cultural object at issue a settlement might be based on a shared distribution. An interesting com-parable proceeding was the Tate-Griffier case before the Spoliation Advisory Panel, where the grant of an adjustable ex gratia money fund together with public commemoration of the family’s loss ena-bled the resolution of the claim to be fine-tuned to the particular justice of the case. (iv) Communi-ty/Collegiality: Mediation is “better adapted to cultivating a co-operative approach”. It draws the par-ties more directly and personally into the dispute resolution process, thus improving the chances of a congenial outcome and a more lasting relationship post-settlement. (v) Transparency: “Mediation will inject a dosage of reality”. It can lead the parties to a better and more subjective appreciation of the strengths of their own positions and cases. This can be especially helpful in cases of art expert ev-idence; a skilled mediator will identify and reduce the significance of this.
15 [1996] unreported 1st March, CA; noted by PALMER NORMAN/CHESTERFIELD WINSTON, Family Disputes over Cultural Material: Tandy v. Kidner, Art Antiquity and Law, Vol. 12, 2007, p. 305.
In Tavoulareas v Lau16, a dispute arose about the defendant’s failure to return various artworks. The claimant had deposited these in a bistro that he had operated as a joint venture with the defendant but which had since failed. The defendant resisted the claim on the basis that he was entitled, under the venerable principle in Clayton v Le Roy17, to a reasonable time in which to examine the title to the objects, and the trial judge upheld the defence despite compelling evidence that the defendant’s position was at variance with the facts. The Court of Appeal castigated the trial judge’s “manifest failure to get to grips with the issues”, his “total failure” to analyse the law and to give reasons for his decision, and his “inadequate reasoning” generally. These failings so seriously infected the whole of his judgment as to disable the Court from relying on such findings as the judge did make. The result here was particularly disastrous because it necessitated a new trial:
“In […] this case it is impossible for us to make any findings as to whether or not […]
the claim is satisfied. Regrettably, the remainder of this claim must be remitted back to the County Court for further consideration when the issue of damages, if any, can also be considered.”
Perhaps ironically, the threat of misdirection at first instance can also be glimpsed in Neave v Neave itself, where the Court of Appeal gave permission to appeal against Hol-land J.’s decision on costs18. Viewed in that light the case offers a further reason for avoiding litigation, beyond those already given by Holland J himself: to wit, that the first-level judge may misapply the law, requiring an expensive journey to some higher tribunal19.
16 [2007] EWCA Civ 474; noted by BRISTOW MELANIE, Bistro Blues: Tavoulareas v Lau, Art Antiqui-ty and Law, Vol. 13, 2008, p. 99.
17 [1911] 2 KB 1031; PALMER,Palmer on Bailment (cit. n. 1), p. 71.
18 [2002] EWCA Civ 1193 at para. 35 per Chadwick LJ: “The judge does not seem to have addressed himself to that point. He simply observed that the offer did not match the judgment. But the question was not whether the offer matched the judgment; the question is whether the offer was more or less advantageous to the claimant than the ultimate result. Had the judge reached the conclusion that the judgment was no more advantageous than the offer, then he would have been obliged to order in-demnity costs from the date on which the offer could have been accepted and interest at 10 per cent on any money recovered unless he considered it unjust to do so. In considering whether it was unjust, he was required to take into account the matters in CPR Part 36.21(5). His costs judgment is open to the criticism that he does not seem to have addressed either of those points expressly; save in the short observation that the offers did not match the ultimate judgment”.
19 For a further example of the Court of Appeal’s pungent castigation of a first instance judge see Brewer v Mann [2012] EWCA Civ 246.
The bungling legal adviser poses a threat to litigants in every realm of controversy, not least that of claims to chattels. The pressures of daily practice and the frantic pace of legal change can lead to what might euphemistically be termed “uneven knowledge”.
While one rarely experiences serious ineptitude, a failure to keep abreast of develop-ments and a resultant ignorance of modern authority are not uncommon in some quarters.
In 2008, the author was surprised to read a letter from a leading firm of City solicitors alleging that a defendant had committed the tort of detinue. This venerable tort may well have been alive and kicking when the writer of the letter last studied his law, but it was abolished by section 2(1) of the Torts (Interference with Goods) Act 1977, which came into force in 1978. Throughout a period of more than thirty years, the solicitor had ap-parently failed to grasp this fact. One wonders how much the client was being charged for this trip down memory lane.
Perhaps the practising lawyer is not always to blame. One sometimes finds that the au-thors of learned treatises on law have not fully assimilated and accurately expounded the effects of modern case law. For example, the decision of the Court of Appeal in Iran v Barakat20 was delivered in 2007 and is a leading authority both on the cross-border recovery of archaeological finds and on the types of interest in goods that are necessary to enable a claimant to sue in conversion. One of the significant obiter dicta delivered by the Court was to the effect that, while a claimant in conversion must in certain circum-stances show an immediate right to possession of the claimed chattel, that right of pos-session need not stem from a proprietary interest. The Court further opined that the deci-sion in Jarvis v Williams21 (which appeared to impose the requirement of a proprietary interest) could properly be explained on other grounds. As late as 2009 and 2010 two of the leading practitioner textbooks were continuing to recite as law the now-discredited requirement of a proprietary interest and were citing Jarvis v Williams as authority for that requirement22.
Clients can sometimes fail to provide the information that a legal adviser needs and can bridle at the adviser’s attempts to extract this. One difficulty may lie in persuading the client that the prosecution of the claim requires the presentation of evidence, not of the cultural property laws that are currently in force in the client’s country, but of those now-repealed laws that were in force when the cultural objects in question were removed from that country. Obtaining a copy of those ostensibly defunct laws, and a fortiori ob-taining an authentic translation into English, can be a trickier and more delicate exercise than one might suppose. Clients may be unwilling to admit that such laws are no longer
20 [2007] EWCA Civ 1374.
21 [1955] 1 WLR 71, CA.
22 JONES MICHAEL A./DUGDALE ANTHONY M., Clerk and Lindsell on Torts, 20th ed., 2010, para. 17 et seqq; GOODE ROYSTON M., Commercial Law, 4th ed., 2009, p. 67.
In Tavoulareas v Lau16, a dispute arose about the defendant’s failure to return various artworks. The claimant had deposited these in a bistro that he had operated as a joint venture with the defendant but which had since failed. The defendant resisted the claim on the basis that he was entitled, under the venerable principle in Clayton v Le Roy17, to a reasonable time in which to examine the title to the objects, and the trial judge upheld the defence despite compelling evidence that the defendant’s position was at variance with the facts. The Court of Appeal castigated the trial judge’s “manifest failure to get to grips with the issues”, his “total failure” to analyse the law and to give reasons for his decision, and his “inadequate reasoning” generally. These failings so seriously infected the whole of his judgment as to disable the Court from relying on such findings as the judge did make. The result here was particularly disastrous because it necessitated a new trial:
“In […] this case it is impossible for us to make any findings as to whether or not […]
the claim is satisfied. Regrettably, the remainder of this claim must be remitted back to the County Court for further consideration when the issue of damages, if any, can also be considered.”
Perhaps ironically, the threat of misdirection at first instance can also be glimpsed in Neave v Neave itself, where the Court of Appeal gave permission to appeal against Hol-land J.’s decision on costs18. Viewed in that light the case offers a further reason for avoiding litigation, beyond those already given by Holland J himself: to wit, that the first-level judge may misapply the law, requiring an expensive journey to some higher tribunal19.
16 [2007] EWCA Civ 474; noted by BRISTOW MELANIE, Bistro Blues: Tavoulareas v Lau, Art Antiqui-ty and Law, Vol. 13, 2008, p. 99.
17 [1911] 2 KB 1031; PALMER,Palmer on Bailment (cit. n. 1), p. 71.
18 [2002] EWCA Civ 1193 at para. 35 per Chadwick LJ: “The judge does not seem to have addressed himself to that point. He simply observed that the offer did not match the judgment. But the question was not whether the offer matched the judgment; the question is whether the offer was more or less advantageous to the claimant than the ultimate result. Had the judge reached the conclusion that the judgment was no more advantageous than the offer, then he would have been obliged to order in-demnity costs from the date on which the offer could have been accepted and interest at 10 per cent on any money recovered unless he considered it unjust to do so. In considering whether it was unjust, he was required to take into account the matters in CPR Part 36.21(5). His costs judgment is open to the criticism that he does not seem to have addressed either of those points expressly; save in the short observation that the offers did not match the ultimate judgment”.
19 For a further example of the Court of Appeal’s pungent castigation of a first instance judge see Brewer v Mann [2012] EWCA Civ 246.
The bungling legal adviser poses a threat to litigants in every realm of controversy, not least that of claims to chattels. The pressures of daily practice and the frantic pace of legal change can lead to what might euphemistically be termed “uneven knowledge”.
While one rarely experiences serious ineptitude, a failure to keep abreast of develop-ments and a resultant ignorance of modern authority are not uncommon in some quarters.
In 2008, the author was surprised to read a letter from a leading firm of City solicitors alleging that a defendant had committed the tort of detinue. This venerable tort may well have been alive and kicking when the writer of the letter last studied his law, but it was abolished by section 2(1) of the Torts (Interference with Goods) Act 1977, which came
In 2008, the author was surprised to read a letter from a leading firm of City solicitors alleging that a defendant had committed the tort of detinue. This venerable tort may well have been alive and kicking when the writer of the letter last studied his law, but it was abolished by section 2(1) of the Torts (Interference with Goods) Act 1977, which came