Jackson reforms one year on—how has it affected barristers?

Dispute Resolution analysis: Following Lord Jackson’s review of civil legal costs, new measures were brought into force on 1 April 2013. On the first anniversary of the reforms, Brent McDonald at Old Square Chambers and Ali Tabari at St Philips Chambers, explain how litigation has changed under the Jackson regime.

What has life been like in court following Jackson?
Ali Tabari (AT): The preparation for cases has changed, as it is a lot more details-focused, especially with regard to case management conferences (CMCs).

From the Bar’s perspective:

• we have become a lot more involved in costs management
• there has been more consultation on Part 36 offers
• there have of course been innumerable ancillary applications in which we have been instructed to draft and appear at court
There is certainly an advantage to having delivered training on Jackson before its implementation because it is abundantly clear who is and who is not clued up on the changes. In court, things are largely as before, except that judges have become somewhat less forgiving of default than they previously may have been.

Brent McDonald (BM): It has been more combative, both with judges and opponents. There is far less incentive for parties to agree variations in the timetable or to overlook mistakes following Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2013] All ER (D) 314 (Nov). Whereas in the past you could expect the other side not to take silly points as long as there was no real prejudice, lawyers are now on the lookout for any default on which to base an application for sanctions. Judges have also become less trusting of the parties. They are more willing to refuse permission to rely on the experts needed to value the case, now that it is no longer enough to show it is ‘reasonable’ and ‘necessary’ to take a step under the Jackson reforms.

Personally I enjoy stormy hearings and much prefer a court-based practice over a paper one, so I admit I have rather liked life post-Jackson.

What particular challenges have you faced? Has it affected your relationship with instructing solicitors?
AT: The main challenge is the uncertainty of how it will all be dealt with by judges. Mitchell is the main culprit because:

• there are plenty of district judges who appear to have no interest at all in implementing Mitchell’s robust approach and plenty of others who take almost a robotic line with any kind of default
• it is difficult to judge what constitutes the kind of default which really will be caught by the rather heavy-handed approach of Mitchell, and what constitutes the kind of error for which relief from sanctions will be granted—the spin-off has been tempering professional clients’ expectations in relation to how a breach will be dealt with
Clients are nervous about any kind of default, which means we have had to work even more closely than usual with our solicitors to ensure everyone is happy with what is being done. From the Bar’s point of view, that must be a good thing and modern-thinking barristers who are prepared to be part of a team have thrived.

One particular area of concern is costs budgets and when they should be submitted. On plenty of occasions my clients have wanted to submit them at a first hearing, even if that hearing is not a CMC (such as an allocation hearing). This is because they fear a judge who is not entirely comfortable with the new rules will make an odd decision requiring further applications to rectify.

It has always been tough to admit to a judge that one’s instructing solicitor has made a mistake and that relief from sanctions should be granted, but the consequences of default these days means relief from sanctions applications are even more fraught than before. This necessarily puts a strain on the relationship with solicitors if the breach is a serious one for which there is no real excuse. By contrast, the relationship appears to improve immeasurably if such an application is successful.

BM: Perhaps the biggest challenge has been costs management hearings which turn into detailed assessments, based on nothing more than the parties’ best guesses as to how the case will progress. It means prior to the hearing you and your solicitor have to indulge in crystal ball gazing about things better left until you were more informed. I have found myself having to agree how many pages a witness statement will be when no-one has any real idea about exactly what they will say or what will turn up in disclosure.

It has changed my relationship with solicitors. Before taking any step you now have to consider whether it is sufficiently covered in the budget, or if you will have to apply to amend. That means I have to understand what costs my solicitors have incurred and what they are intending to spend (including agreeing what fee I’m likely to charge, something I’d prefer not to get involved with). This has meant costs and case planning have become far more collaborative. On the other hand, one advantage of this is that you can really explore with your solicitor at an early stage exactly how and when you can contribute to a claim throughout its life.

Are there any aspects of Jackson that you would like to see reviewed?
AT: I think all lawyers would appreciate more clarification on matters flowing from Mitchell, particularly in relation to how relevant (if at all) the old Civil Procedure Rules 1998, SI 1998/3132 3.9 (CPR) checklist is. It is welcome news there are plans afoot to allow parties to agree a time extension for witness statements.

An improvement to the damages based agreements (DBAs) regulations would also be welcome. The uptake of DBAs has been very low, mainly (in my view) because there is currently no proper provision for ‘partial DBAs,’ which would allow for some costs recovery in any event and a further payment in the event of success. From the current state of the rules, it seems such an agreement wouldn’t be allowed, but expanding the scope of DBAs would almost certainly serve to increase their popularity.

BM: The emphasis on procedural compliance in the name of justice has to be tempered. Although there is a talk of a culture change being effected, lawyers under ever more pressure to cut costs will inevitably miss things. Where that happens but the default can be rectified in costs, it’s simply not ‘just’ to turn a personal injury claim into a professional negligence claim, with reduced damages for loss of a chance.

AT: It is perhaps still a little early to call for reviews or changes of any of the other headline Jackson reforms—as the full effect of things like expert witness hot-tubbing, qualified one-way costs shifting and menu-based disclosure will not be known for another few years yet.

How do you see Jackson developing over the next year?
AT: Lawyers would expect the Mitchell approach to be refined and perhaps even slightly softened in certain circumstances. That is certainly the hope, so the current atmosphere of fear and uncertainty can be lifted.

Other potential developments include:

• the uptake of DBAs, which could be helped along by further reform
• parties may begin to get a feel for what kind of costs budgets will be acceptable to the court and even try to agree the budgets a bit more to remove the power of review from the judge—part of the present difficulty is that some judges instinctively knock down budgets on the suspicion they have been overblown, which leads to budgets being overblown on the expectation they will be knocked down to a reasonable figure (and so the vicious cycle continues)
• parties in larger litigation may be able to co-operate on the level of disclosure truly required that could greatly reduce costs—there is still room for improvement on this front, in my opinion
BM: Something will have to be done to reduce the multiple applications to which Jackson gives rise. The resources to actively manage cases in the manner originally envisaged by the CPR under Jackson simply do not exist. I hope a way can be found for parties to be encouraged to agree the evidence required and a sensible timetable where possible, with unreasonable behaviour being punished in costs.

I fear however the courts will instead respond by proposing a ‘quick and cheap’ system to deal with Mitchell hearings, with less oral advocacy, all in the name of access to justice.

Interviewed by Rachel Moloney.

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

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