Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31LocalGovernmentLawyer Dispute Resolution 2016 13 and have varying degrees of reliance on the legal team represents an opportunity. Joyce Golder, Principal Solicitor (Litigation) at Tri-Borough Shared Legal Services – which serves the Royal Borough of Kensington & Chelsea, Westminster City Council and Hammersmith & Fulham Council – said her team was now feeding back to one of the boroughs the extent to which they were relying on the legal department when the others did not, and what it cost comparatively. “We can then provide best practice based on our experience of all three. We have had regular client meetings with the boroughs on how they can rely less on legal and what we’ve found is that often our legal staff are doing administration or running around for the client relating to file work which the client could be doing for themselves. If we do it we will charge for it. It is important to raise the awareness of the client of these charges by providing them with regular fee notes of the cost of our work.,” said Golder. The Tri-Borough team also recently delivered training to over 100 environmental/street enforcement officers to increase and refresh their knowledge so legal reliance is decreased. “We also challenge whether there is another way to do certain work (for example using the EPA for gas warrants),” she added. “It’s not always welcomed; it’s challenging how they have been doing things for 20 years or more, but that’s the benefit of having a shared service – it enables us to compare and contrast what we are doing and determine the best way forward.” Being more commercial Another option for local authorities faced with a rising number of disputes is to adopt a different approach to the disposal of cases. So have attitudes towards settlement changed in recent years? Have councils become more commercial? Enfield’s Middleton-Albooye reported that there had been a greater willingness in her authority to settle certain kinds of cases, such as housing disrepair disputes. In relation to the latter, she said her lawyers worked very hard with surveyors to stop claims before they escalate. “If we are likely to lose a disrepair claim, [we look] to settle because the costs very often eclipse the cost of repairs,” she said. One potential complication is that client departments can be quite emotionally involved in their cases and so reluctant to compromise, said Helen McGrath, Development Officer at Lawyers in Local Government (LLG) and a former senior litigation lawyer at London boroughs. “They sometimes couldn’t detach themselves from the case and the evidence. They would say ‘I am instructing you to do this…’,” she said. The Dispute Resolution 2016 survey indicates that there has been relatively little change in local authorities’ use of alternative dispute resolution (ADR) over the last three years. Asked why they thought this was the case, delegates pointed out that the success of ADR is often dictated by the type of dispute and the attitude of other parties; many – particularly litigants in person (LiPs) – want their day in court against public bodies. Ian de Prez, Head of Litigation at Suffolk Coastal District Council, said his experience of ADR had so far been limited but it had been positive for contract litigation and property litigation. “However, in one case which involved a LiP it did not settle when it would have done had this person had legal representation,” he said. De Prez added: “There has been talk of encouraging planning and licensing ADR but I’m a sceptic there because they are just too complicated and you have a regulatory process in place. But for private litigation, yes, ADR can work.” A real challenge can be to get instructing officers to think commercially and agree to ADR being used, argued Tim Briton, Litigation Solicitor at Gateshead Council and Lead Officer for Litigation and Licensing for LLG. “While lawyers can often get the best result for the council, instructing officers are often not interested in compromising even though the costs may outweigh the benefits. Either they want full compliance or a judge to tell them that they’re wrong and it’s a real skill trying to persuade someone that there might be options other than going all the way to court.” Briton added that one of the difficulties with ADR is the nature of local authorities’ constitutions and their decision-making processes. “If they are set up for the lawyer to have the final say then that’s great but if we have to defer to other people to take decisions then [it is more difficult],” he argued. “It doesn’t lend itself to mediation where you have to ask those in power before you can do something in a mediation. It puts a massive obstacle in the way of acting commercially in the way that ADR best suits.” This view was echoed by other delegates. “You need a strong working relationship with the instructing service so that they are able to accept what you’ve done,” agreed one. “There has to be that respect both ways because if you don’t win 110%, you can often take criticism if you, say, accept 80% of the claim.” Delegates pointed out that the judiciary are increasingly pushing parties hard to settle their disputes. “The courts really don’t want to see us anymore,” said Gateshead’s Briton. “At every stage, the court is always saying: ‘why haven’t you settled this and why haven’t you talked?’ You do realise that you are going to be at risk on costs because the obligation is on you as a local authority to be the grown up here. The rules don’t seem to apply to the other side – you have to do everything. Any sanctions will only apply to you and not to the other side and you sometimes feel as if you are fighting the court as much as the other side.” Joyce Golder reported that Tri-Borough Legal Services had had up to 20 cases where ADR had been used in one form or another, whether mediation, arbitration and adjudication; most frequently for procurement and adult social care cases. One positive development, she noted, is that there is now greater competition in the market to provide ADR services, with some organisations offering a £1,500-unit cost to make someone available. “It’s not really on our radar but more could be done with it,” suggested Golder. Talking the talk As well as making greater use of ADR, delegates suggested that legal teams could also consider reducing their use of external counsel. Handling a greater amount of advocacy in-house has the potential to deliver savings and be seen by in-house lawyers as positive for their careers. “For years, there were certain types of work that we traditionally used counsel for but recently we’ve found that there’s a “That’s the benefit of having a shared service – it enables us to compare and contrast what we are doing and determine the best way forward” Joyce Golder Tri-Borough Shared Legal Services