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Jacksons birthday blues

14 March 2014

Thompsons Solicitors say it has created a "climate of fear", the City of London Law Society describes it as "punitive and formalistic - even anachronistic". The change in costs and case management introduced by Lord Justice Jackson has certainly caught the attention of the profession.

Practical Impact

Two cases provide striking examples of the impact the reforms can have on individual claims:

"Mitchell" is now synonymous with tough costs management, having had his recoverable costs (which might otherwise have been in the region of £500,000) limited to court fees, for failing to file a budget.

Newland Shipping saw two defendants subject to a combined judgment of £7 million for failing to provide proper disclosure or serve witness statements on time, and fail in their application for relief from sanctions.

However, it is easy to focus on the outcomes of cases without considering the detail. Mitchell is pointed to as a judgment which could deny access to justice, but this was not a factor as no evidence on the issue was adduced.

Newland might be seen as inflexible application of deadlines but an agreed extension had been missed, trial was on the horizon, and the defendants had failed to attend the hearing at which the sanction was imposed.

Change management

As any change management consultant would tell you, identifying a plan for change is only part of the process. Consistent oversight and achieving buy-in from stakeholders is key to implementation.

For the purpose of Jacksons reforms, Lord Dyson and Lord Justices Jackson, Stephen Richards, Davis and Lewison are our change management team. Lord Dysons implementation lecture of 22 March 2013 set the scene: "Parties can no longer expect indulgence if they fail to comply with their procedural obligations." That line has been followed by the Appeal Court judges.

Clear guidance

As highlighted recently by Nichola Evans it is more difficult to see consistent buy in from the lower courts. Regional or individual approaches have emerged which do little to promote the certainty required for cost effective litigation:

  • In MA Lloyd and Son Mr Justice Turner, of his own initiative, ordered that the claimant be debarred from pursuing issues where its witness evidence had been delayed by around 3 months.
  • In strikingly similar circumstances, a district judge at Haverfordwest County Court refused a defendants application for strike out, and allowed a claimants application (made late in the day) to extend time for service.
  • District Judge Lumb in Birmingham District Registry rejected submission in Burt v Christie that filing a costs budget one or two days out of time was a trivial breach and debarred the defendant from recovering more than court fees.
  • In contrast, in Lakatamia Shipping Co Ltd, Hamblen J determined that despite previous delays and an unless order, a 45 minute delay to service a list of documents was trivial such that relief from sanctions would be granted.
  • Going a step further, Summit Navigation saw a defendant criticised and ordered to pay costs for unreasonably refusing to consent to an application to lift a stay where a claimant has failed to comply with an order to provide a security.

The inconsistency between cases in the lower courts and the number of instances in which Mitchell has not been followed led Kerry Underwood to comment recently that there are "many judges in many courts who are in open rebellion".

Certainly it seems that the courts have experienced problems with the sheer number of applications being made, and the latest update to the clinical negligence model order includes provision allowing parties to agree extensions of up to 28 days.

Future of the Jackson Project

Whilst Lord Dyson was unrepentant earlier this month insisting there was no going back there are growing calls for the CJC to look to add greater clarity in the Rules going forward as to what can and cannot be agreed by the parties as part of its review of the first year of the Jackson reforms.

Submissions are generally critical of the impact of strict costs and case management rules, suggesting they put process before justice and deter parties from making sensible efforts to resolve disputes.

However, there are signs that the changes are having their intended effect. The debate around compliance has undoubtedly resulted in greater discipline in many practices. The fact that courts are receiving more prospective applications for extensions demonstrates that this is working.

There is little evidence to support the view parties are less able to cooperate under the new regime. In any event, recent cases and the clinical negligence directions make it clear that there is a sensible middle ground between respecting directions and compliance at all costs. We can expect a clearer, more balanced picture to emerge as further cases are decided in the Court of Appeal. In time this will filter down to the lower courts.

Solicitors face many pressures in the current market, not only from process reform but also from new competitors who say they can deliver a better, faster service fit for the 21st century. If we dont respond to the Jackson reforms with increased discipline, better project management and real proactively we risk being left behind.

We need to use the reforms as a platform for change, or it could be our profession and not Jacksons reforms that will be seen as anachronistic.

This article was first published in New Law Journal

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