7 trends/predictions for litigation practice in 2014

Following on from Wednesday's analysis of 2013's greatest hits, we asked our panel of experts, Paul Jonson,  Adrian Bell, Jonathan Sacher and Ravi Aswani what trends and predictions they foresee for litigation practice in 2014, Jackson or otherwise.

1. Mediation & ADR

Regarding the case of PGF II SA v OMFS Company 1 Limited [2013] EWCA Civ 1288, [2013] All ER (D) 264 (Oct), we have been expecting further guidance on the court's approach to mediation. In PGF the Court of Appeal decided, generally speaking, that a failure to respond to an invitation to participate in alternative dispute resolution (ADR) is unreasonable irrespective of whether there was a good reason for refusing ADR. The Court of Appeal, in upholding the first instance decision, deprived the defendant of its costs under the Civil Procedure Rules 1998, SI 1998/3132, r 36.10 as a consequence of its unreasonable refusal to mediate.

This is a further indication from the courts of the importance of ADR. We are not yet at the stage of compulsory mediation, and clients can reject offers to mediate if they are unreasonable offers. However, it is very clear (if it were not already) that clients must engage with the principle of mediation. Parties cannot clasp their hands to their eyes and try and ignore it.

At Pannone we have been enthusiastic supporters of mediation for many years and on average we take part in around 30–40 mediations a year with clients. This decision makes the direction of travel clear. Mediation is only going to become more central to the resolution of disputes and our advice notes to clients regarding mediation have been amended as a consequence of this decision. The decision also provides more ammunition for us to use with opponents who are not engaging with the mediation process. (Paul Jonson)

2. Increase in formal disputes

Clients are reporting an increase in formal disputes generally. This is likely to continue into 2014. In the construction industry, a rise in adjudications is likely given the confirmation that some collateral warranties are subject to statutory adjudication under the Housing Grants, Construction and Regeneration Act 1996(HGCRA 1996) (Parkwood Leisure Ltd v Laing O’Rourke Wales and West Ltd [2013] EWHC 2665 (TCC), [2013] All ER (D) 221 (Aug)). (Adrian Bell)

3. Continuing effect of Jackson reforms

The effect of the Jackson reforms is likely to lead to:

• clients demanding more from their legal providers—whether or not damages based agreements become more common place may hinge on the resolution of the uncertainty surrounding hybrid damage based agreements
• stricter enforcement of court deadlines, including for the provision of costs budgets (Mitchell)
• an increased use of ADR—PGF highlighted the dangers of ignoring an invitation to mediate (ie a development of the principles set out in Halsey v Milton Keynes General NHS Trust; Steel v Joy [2004] EWCA Civ 576, [2004] 4 All ER 920)—the Court of Appeal stated ‘this case sends out an important message to civil litigants, requiring them to engage with a serious invitation to participate in ADR, even if they have reasons which might justify a refusal...’ (Adrian Bell)

2014 will undoubtedly see a number of judgments looking to address the questions left unanswered by Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537, [2013] All ER (D) 314 (Nov). (Jonathan Sacher)

4. Damages-Based Agreements

We also expect to see a substantial rewrite of the Damages-Based Agreements Regulations 2013, SI 2013/609 in April 2014, to address the significant shortcomings of the current Regulations (in particular, to enable parties to enter into partial damages-based agreements). (Jonathan Sacher)

5. CPR

Additionally, we are looking forward to the proposed new Part 36, which we hope will deal with many of the limitations and problems that have arisen with the current Part 36 since its inception (and in particular since the 2007 amendments). (Jonathan Sacher)

6. Court

Litigants and their solicitors will still find it difficult in practice to avoid ever breaching a court rule or order and the courts will be routinely faced with applications for relief from sanction. (Ravi Aswani)

7. Legal Aid

Civil legal aid will continue to diminish. One of the consequences will be more applications for relief from sanction as litigants will claim that they did not know the rules and did not have legal advice. (Ravi Aswani)

Paul Jonson is head of the dispute resolution and regulatory division at Pannone. Adrian Bell is a partner and solicitor advocate in the Energy, Projects and Construction Disputes team at CMS Cameron Mckenna. Jonathan Sacher is a senior reinsurance and insurance partner and the head of the litigation and dispute resolution department at Berwin Leighton Paisner. Ravi Aswani is a commercial dispute resolution barrister at Stone Chambers.

Interviewed by Nicola Laver. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This article was first published on Lexis®PSL Dispute Resolution on 6 January 2014. Click here for a free 24 trial of Lexis®PSL.