JACKSON: A CULTURAL SHIFT... argues David Mohyuddin, a barrister at Exchange Chambers
If you're a civil litigator and you haven't heard of the Jackson reforms, you must have been in outer space. April 2013 saw fundamental changes to the way in which civil litigation will be conducted. These aim to secure affordable access to relative justice for all rather than proving perfect justice for the wealthy few. What prospect is there of achieving this aim, and how will we get there?
The watchword for cases in the new regime is proportionality. CPR 1.1 – the Overriding Objective – has been rephrased to include the requirement of dealing with cases at proportionate cost, and enforcing compliance with rules, practice directions and orders. There will be "robust" case management and costs budgeting for multi-track cases, together with an increased likelihood of the imposition of sanctions and a decreased likelihood of obtaining relief from them.
This means, for example, that just because some work has to be done (being both reasonable and necessary) if the cost of it is disproportionate, that cost will not be recoverable.
The rules for costs budgeting mean that, if the budget is not filed on time, costs will be limited to the court fee! But also, if the Court considers that a particular step need not be taken, it will not approve the cost of it being taken. That means, for example, that standard disclosure will no longer necessarily be the norm.
Robust case management includes the firm enforcement of directions once they have been given and the likely refusal of relief from sanction: deadlines will have to be met. Any application for relief will have to consider the need for litigation to be conducted efficiently and at proportionate cost, even at the potential risk to the lawyers' insurance policies.
These necessarily involve cultural changes: an emphasis on the proportionality rather than the necessity and reasonableness of any step to be taken; increased importance on conduct with a focus on costs incurred and (likely) a genuine benefit from a costs order on the indemnity basis.
The Courts seem set on implementing these changes, both at first instance and appellate level. This is, therefore, a good prospect that the aim will be achieved, though the end of the CFA (in most cases) saw the baby being thrown out with the bathwater. For middle income litigants, this actually presents a substantial obstacle in their way to a court resolution of their claims.
Overall, the chances are that more (but not all) litigants will have better access to justice, which will be swifter and conducted at less cost. That justice will be less than perfect. But getting something is better than nothing. And that's got to be A Good Thing, hasn't it?
David Mohyuddin is a barrister at Exchange Chambers (Manchester, Liverpool and Leeds). His practice covers commercial litigation, insolvency, company & partnership, banking, mortgages & asset recovery, professional negligence, commercial fraud and sports law.
He can be contacted at email@example.com