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LORD CHANCELLOR'S DEPARTMENT
9. Case No. C.943/99
The Court Service: mishandling of the listing of a hearing and solicitors' complaints
9.1. Solicitors A and solicitors B complained that although the Court Service (CS) had listed the trial between their clients well in advance, they had failed to take reasonable care to avoid a possible clash with another case overrunning; and that, when the preceding case had overrun, they had failed to take all reasonable steps to find an alternative judge and court for the trial. They also complained that CS had not dealt properly with their complaints.
CS's analysis of the complaint
9.2. An edited extract from CS's reply to the Ombudsman is at annex A.
Further developments
9.3. On 14 April CS informed the Ombudsman's staff that the further investigation they had instigated (see paragraph 9.h at annex A) had failed to establish exactly what steps CS had taken to have the complainants' case heard at a different court on 3 November 1997. The court had confirmed that they had a computer record which read: "Trial on 3/10/97 [presumably that should have read 3/11/97] bounced due to the fact that [the judge] overrunning with a trial from last week, due to overlisting. No network support available. [The High Court] were unable to offer help. Parties contacted throughout the day & formally notified of position by 2.30pm." The High Court maintained that they would have been able to take the case had they been asked to do so as they had had judges available at that time. Both the court and the High Court were certain about their version of events but CS accepted that one side must be mistaken. In the light of those two conflicting versions of events, on 20 April CS wrote to solicitors A and solicitors B asking for a breakdown of their costs with a view to offering an ex gratia payment.
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Conclusion
9.4. CS have accepted that there remains a doubt as to whether the service provided by the court to solicitors A and solicitors B was adequate, and that the court failed to reply to the solicitors' initial complaints on the matter. CS have agreed to compensate the parties for their wasted costs and apologised for the court's failure to reply to correspondence. I now pass that apology on to the solicitors through this report. I consider CS's agreement to pay compensation and apologies as a suitable outcome to the complaint, since if the complainants are dissatisfied with the eventual outcome it will be open to them to ask the Member to refer a follow-up complaint to the Ombudsman.
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ANNEX A
Edited extract from CS's reply
9.a. On 23 February 1993 solicitors A and solicitors B made a joint application to the High Court to have their clients' case transferred to the County Court (the court) under section 40 of the County Courts Act 1984. That application was granted on 15 March. The court subsequently asked the solicitors for dates to avoid and arranged for the case to be heard on Monday 3 November 1997 at 10.30 am with a time estimate of five days. During the afternoon of Friday 31 October (the last working day before 3 November) the listing officer learned that the case which had started on Monday 27 October before the judge due to hear the complainants' case on Monday 3 November would overrun by two days. It had had a five day time estimate and eventually overran by one day. The listing officer immediately told the parties and tried to arrange for the complainants' case to be heard at another venue. Unfortunately, he was unsuccessful and the court was forced to vacate the hearing.
9.b. On 19 November solicitors A wrote to the court manager seeking compensation for the wasted costs they had incurred as a result of the aborted hearing. Solicitors B wrote to the court manager in similar terms on 4 December. Both solicitors subsequently complained that they did not receive replies to those letters and I apologise for that oversight. On 11 February 1998 solicitors A wrote to the group manager's office complaining that the case had been postponed at short notice and reiterating their claim for compensation for the costs they had incurred. On 13 February the group manager's office acknowledged receipt of that letter and asked the court manager for a draft reply and report on the circumstances surrounding the late adjournment of the case. On 16 February solicitors B wrote to the group manager's office in similar terms. On 19 February the group manager's office acknowledged receipt of that letter and asked the court manager for a draft reply and report on the complaint. The court told the group manager's office that a case the judge had started the previous week had overrun its allotted time; their attempts to have the case heard at another court had failed; and the High Court had been unable to assist them. The court also explained that as soon as the court had exhausted their options they had contacted the solicitors and told them that unfortunately their case had to be removed from the list.
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9.c. On 9 March the group manager's office passed both claims to CS Customer Service Unit (CSU) for consideration as the claims exceeded their jurisdictional limit. Having sought further information from the court, CSU replied to both solicitors on 3 April. They explained that CS could only make an ex gratia payment when an individual had suffered a financial loss as a result of maladministration by court staff. CSU were satisfied that no over listing had occurred; and faced with the difficulties of another case overrunning, the court had done all it reasonably could to get the case heard elsewhere.
9.d. On 14 April solicitors A wrote to CSU saying that their explanation was entirely unsatisfactory and that they intended to pursue the matter further. On 21 April solicitors B wrote to CSU asking for the details of the courts and departments that had been approached to take their case and/or to provide a judge to hear it. Solicitors A also asked for that information on 28 April. CSU replied to those letters on 29 April and 30 April respectively explaining that the relevant County Court Group had a designated listing co-ordinator whom any of the 16 courts within the group could contact if they had problems with their lists. The co-ordinator was responsible for contacting the other courts within the group and for moving cases between courts to ensure that they were dealt with, and the best use made of judicial time (a procedure known as networking).
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9.e. On 6 May solicitors B wrote to CSU asking for a list of the courts that had been approached to take their case. CSU replied on 14 May explaining that although there was a note that other courts had been contacted, that note did not name those courts or say how many had been contacted. On 5 August solicitors B wrote to CSU explaining that they had approached a number of courts within the County Court Group and the High Court. The High Court had told them that they would have been able to take their case had they been contacted by the court. Solicitors B said that both they and solicitors A would have been prepared for their case to have been heard at the High Court; and contended that the court had made insufficient efforts on their behalf. They asked for CSU's comments before referring the matter to the Ombudsman.
9.f. On 1 September CSU asked the group manager's office for their comments. The group manager's office replied on 3 September confirming that the court would have tried to "network" the case to one of the 16 courts within the group in line with normal procedure (see paragraph 9.d above). In addition, the court had good relations with the High Court and might have asked them to take the case. However, due to the length of time that had elapsed it was difficult to confirm that. They also explained that because of the urgency of such matters networking was usually done by telephone or e-mail. Notes might have been kept at the time but once a case had been transferred (or not as the case may be) there was no further use for the notes and they were disposed of. The court mainly depended on "word of mouth" as to whether or not another court was able to take a case at short notice. Although the group manager's office did not dispute that the High Court had told solicitors B that they could have taken their case, they pointed out that when the court had contacted the High Court all their cases could have been effective; but that could have changed at very short notice at a later stage. On 15 September CSU replied to solicitors B explaining that it was difficult to tell exactly which, and how many, of the other courts within the group had been contacted in an attempt to transfer the case. Records of whom the court had contacted were not kept as contact was made by telephone and only basic notes would have been made at the time. CSU said that the court would have tried to network the case to one of the 16 county courts within the County Court Group rather than to the High Court, who were on the Supreme Court Circuit. While that did not rule out the High Court, the High Court were not party to the arrangement between the relevant county courts and were therefore less likely to be contacted in those situations. CSU went on to say that the courts were not obliged to provide the networking service; the service was not fail-safe; and much depended on the listing at the other courts within the group and whether a judge agreed to take a case. Those factors were not under the control of the court and no guarantee could be given that a case could be transferred, whatever the efforts made to do so.
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9.g. The solicitors contended that the court did not take reasonable care to avoid a possible clash with another case overrunning. I am afraid that it is not possible to legislate for cases overrunning. Courts will list cases based on the time estimates provided by the parties involved in those cases. As you will appreciate, time estimates by their very nature cannot be exact, and in some cases they can prove to be significantly inaccurate, as unfortunately happened in this case. The solicitors also contended that the court should not have listed a lengthy case before their own case. If a case with a time estimate of one day had been listed on Friday 31 October and at lunch time it had become clear that the case would in fact take two to three additional days to complete, the solicitors would still have been in exactly the same position. It is unavoidable that some cases overrun their time estimates despite the best efforts of the courts and the legal representatives concerned. Both solicitors A and solicitors B knew that the court operated a continuous trial system. The continuous trial system means that once a case commences it will continue to its conclusion.
9.h. The solicitors claimed that when the preceding case overran, the court failed to take reasonable steps to find an alternative judge and court for the trial. CS did try to find an alternative venue for the case. The designated listing co-ordinator contacted all the courts in the group and the High Court. There is a record on the court's computer to that effect. Some doubt however exists whether they also contacted the High Court. The court have explained that it was their practice to contact not only the other county courts in the group but also the High Court. Their recollection, unfortunately not substantiated by any documentary evidence, is that they did so; and the computer record supports that contention. The solicitors contacted the High Court who told them that had they been contacted they would have been able to take the case. Given those conflicting version of events I will make further enquiries of both the court and the High Court in an effort to establish more precisely what happened.
9.i. Turning to the final element of the complaint, the solicitors contended that CS failed to deal properly with their complaint. I am sorry that they feel this way. I accept that the court failed to reply to their letters of November and December 1997, and I must apologise for that oversight. However, CS have since replied to their letters promptly and obtained further information from the court where necessary to provide accurate explanations to the issues raised.
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