Lawyers warned over excessive costs
Chris Merritt, Legal affairs editor | March 26, 2007
NSW Chief Justice Jim Spigelman has warned lawyers that unless they rein in the cost and complexity of litigation they risk being sidelined.
In many cases, the cost of the legal process was out of proportion to the value of the dispute, he said. "What is required is 'appropriate' rather than 'perfect' justice. We simply have to stop killing litigants with kindness," Justice Spigelman said.
The problem, he said, was likely to trigger the same sort of government intervention that had stripped personal injury lawyers of large amounts of work.
Justice Spigelman's remarks at the Australian Legal Convention in Sydney on Saturday are likely to alarm the legal profession. Restrictions by state governments on personal injury litigation came soon after Justice Spigelman criticised this area of practice as "the last outpost of the welfare state".
His concerns about the use of disproportionate legal procedures were echoed yesterday by High Court Chief Justice Murray Gleeson, who told the conference: "Litigation is a perfect example of Parkinson's law: work expands to fill the available time."
Justice Gleeson criticised some judges for complex instructions to juries in criminal cases. "A summing up to a jury is intended to be a form of communication, not a display of knowledge and certainly not an exercise in reputational self-preservation," he said.
Justice Spigelman urged the legal profession to review areas of practice where costs "sometimes bear no rational, let alone a proportionate relationship to what is involved".
If lawyers failed to address the problem "it is likely that more areas of disputation will simply be taken away from legal decision-making processes".
He singled out litigation over disputed wills under the Family Provision Act where costs "appear to consume a significant proportion of the assets to be distributed". The costs of the legal process of discovery in commercial litigation were "more than the commercial community is likely to tolerate".
"When senior partners of a law firm tell me, as they do, that for any significant commercial dispute the flag fall for discovery is often $2 million, the position is simply not sustainable," he said.
The business community was aware that legal costs were one of the few areas of business expenditure that had not declined over recent decades. "Unless business lawyers are seen to deliver a cost-effective service, they may very well find themselves bypassed in the same way that some other sections of our profession have come to be bypassed," he said.
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