A new website for local government lawyers has appeared. Given the very wide range of legal issues which affect local authorities, it is perhaps surprising that we have not seen one before. Local authority insulation from the real world will not help them in the civil courts.
I came across the site Local Government Lawyer because it republished an article of mine about Earles v Barclays Bank Plc  EWHC 2500 (Mercantile) (08 October 2009) with the title The cost of non-compliance. Everything said in that judgment about large organisations, such as the defendant bank in that case, applies equally to litigation brought by or against local authorities – they deal with many people, have a host of statutory powers and duties which generate a lot of documents, and a large internal client base which differs from a bank’s only in that the background and experience of the people involved insulates them from the rigours of the commercial world.
Local authority legal departments are a much more professional body than they used to be – I remember being told years ago, in pre-CPR days, that the drafting of any rule of court had to have regard to whether it would be understood by lawyers sent along by the local council, with the implication that if they could understand it then anyone could. Those days, I hope, have gone.
In the commercial world, it is conventional to blame lawyers and the civil justice system for the cost of litigation. These are easy targets, and the vitriol poured on them obscures the fact that much of the blame for the expense lies with the clients themselves, not least for their inability to keep their own documents under control. One positive, albeit painful, effect of recession is that companies review their business practices, and long-term strength may emerge from the lessons of short-term pain. Local authorities seem immune from the harsh but cleansing effects of recession. For all that they whine about increasing budget pressures, there is no evidence in their daily conduct that they have a clue about basic principles of good business. Whilst the rest of us tighten our belts, local councils keep spending as if there was no tomorrow, recruiting where everyone else is laying off (indeed, one suspects, recruiting many of those whose services are no longer required in business), and are apparently oblivious to – well, to most things really.
Today, for example, the Guardian web site carries an advertisement offering £90,000 for a “Director of Finance & Efficiency” at Oxford City Council, which sees no irony in boasting of plans to become “a world-class council, delivering high-quality services and excellent value for money for all our citizens” just after voting to close several of its public lavatories (in this city so dependent on tourists). The county council has been spending money on unnecessary road schemes throughout the recession; the road safety justifications are transparently spurious and the only “business case” which shines through is that the highways department wants to maintain its headcount and its budget. A neighbouring council has just discovered that it has £924,000 less than it thought because somebody found the maths a little too difficult. The Finance Director of any commercial company would be out job-hunting if he made an error of such magnitude, but the cosy world of local government seems happy to forgive – it is only public money, after all.
In the context of litigation, how does one begin to explain concepts of efficiency and proportionality to people who may find it difficult to spell the words? It is hard enough to convey these things to those responsible for businesses – real businesses where jobs and profit and shareholders’ interests are at stake and where reward follows risk and talent – and I do not envy local government lawyers the task of getting instructions and giving advice in a world where normal commercial principles have no meaning. To illustrate what I mean, an unexpected £2 million windfall arrived from the government in the nick of time to save some of Oxford’s public lavatories – you don’t get that in the real world, but miracles really can happen in the fantasy world of local government, especially just before an election. Miracles, alas, rarely turn up in time to help a party whose grasp of the court rules, and of the implications of judgments like Earles, is less than adequate. Local authorities may be spared most of the other pressures of real life, but there are some things which even they cannot duck.
The new Local Government Lawyer site seems a good way to try and bring awareness of some ordinary commercial principles into local government. Perhaps it will also give people like me (whose attitude to these overblown regional cost centres can be summarised as “just empty the bins”) a better idea of what issues face them, and may even explain why, for example, many of their chief executives are paid more than the Prime Minister. Litigation is only one of the areas covered by the site, but (leaving my own article out of it), there is a good selection of pieces in the litigation section, including a couple on the likely impact of Lord Justice Jackson’s report.
I do not come across local government lawyers in pursuing my remit to bring awareness of e-disclosure to court users. Few of them come to the conferences, and few are identifiable as regular visitors to my web sites. A substantial amount of litigation involves public bodies, and the principles of commerciality, of proportionality and of competence apply equally to local authorities as they do to corporate litigants. The problems which the former face in running litigation cost-effectively are no different in kind, and often greater in implication, to those faced by companies. The solutions, and not least the technology solutions, are as essential in one context as they are in another.
Earles will not be the last time a large organisation gets short shrift (to say nothing of costs penalties) from a judge for its lack of basic competence, for lack of readiness for litigation and for its non-compliance with the rules and with good practice. Next time it might be a local authority. The insouciance with which one authority can mislay nearly £1 million whilst another can find a windfall £2 million in its piggy-bank implies a carefree attitude to money which, whilst unsurprising to those of us who actually fund this sink of purposeless activity, is unlikely to cut much ice with a judge concerned to control the costs of litigation.