The lone ranger

By | 22nd November 2012

A sense of perspective is vital to the practice of law these days. In truth, it probably always was!

Remember the Lone Ranger? You do not have to have been born in the 1950s and 1960s to remember the show as reruns of this popular series were being screened only a few years ago and, incredibly, there is a film due in 2013.

To television viewers, the Lone Ranger was a masked former Texas ranger often astride his white stallion, Silver and accompanied by his Native American companion Tonto. (I used to be concerned that the word “tonto” in Spanish means stupid but was, at least partly, reassured to learn that in the Spanish language version of the stories, Tonto has become “Toro” the Spanish for bull.)

The relative perspectives of the Lone Ranger and Tonto are illustrated by the story of the two of them camping in the desert. The Lone Ranger woke up in the middle of the night and gazed at the stars above him.

Tonto asked him: “What do they mean”?

The Lone Ranger replied:

“Tonto, I deduce three things from the stars:
Meteorologically, it is going to be a clear and beautiful day tomorrow.
Chronologically, the time is 3.15 am.
Astronomically, you are seeing only some of the billions of stars in the galaxy.”

Tonto was not impressed!

He said: “You are dumber than buffalo dung, kemosabe (“trusted friend”). Someone has stolen our tent!”

It all depends on your point of view. The stars are the bigger picture but the tent involves people and represents the personal, even selfish, side.

In April 2013 we will see the introduction of new rules in litigation cases regarding the exchange of information about documents and data in advance of the CMC, coupled with judicial costs management and costs budgets.

Some commentators have said that this is nothing new and that the rules have always permitted the courts to manage cases but I think this misses the point, not least because the use of such powers as existed up to now has been largely conspicuous by its absence.

Whether you think this is a desirable development may depend on your perspective. It could be argued that the reform is bad for law firms who have been used to running cases largely without interference from the courts. Personally, I do not favour this approach and nor, I suspect, will the vast majority of responsible lawyers. They will understand that the whole idea of the new rules is to empower lawyers so to organise matters such as disclosure to ensure that they meet the new rules, achieve the client objective of getting their cases heard expeditiously and cost effectively and get paid for their efforts, always assuming that they have lodged the necessary budgets and received court approval. Poor Mrs Henry in Henry v News Group Newspapers must have wondered what hit her when, fresh from winning her action for defamation against the defendants which entitled her to damages, she found she was unable to recover more than a small proportion of the substantial costs to which she would have normally been entitled because she had not filed the necessary budget in court.

If you are a client, these reforms are good news. Clients will be able to influence their lawyers to be transparent about costs and to concentrate on what is reasonably necessary to get their cases to trial in ways which have not been available to them in the past.

We shall see what transpires but the message must be to start preparing for the new regime now and not to wait until April. Millnet and I will be returning to this topic over the coming weeks.

Whatever your perspective, this is an important development in the conduct and cost of litigation in this country.