Jackson reforms one year on: how has it affected costs lawyers?

Jackson reforms one year on: how has it affected costs lawyers?

In the third instalment of our series on how the Jackson reforms have affected different parts of the profession, we now hear from a costs lawyer. Andrew McAulay, costs and litigation funding manager at Clarion Solicitors, explains how litigation has changed under the Jackson regime.

(how the Jackson reforms have affected solicitors and barristers in the last year)

We are always interested in hearing your views and thoughts – please do let us know whether you agree, or have a different perspective.

How has Jackson affected your day-to-day life?

The Jackson Reforms have affected my day-to-day life in the following main areas:

Costs budgeting

We are now as busy as ever. Costs budgeting has resulted in a surge of additional work. We have had to put a lot of effort into creating new precedents and learning about costs budgeting in a very short space of time. The summer of 2013 was very difficult as this is when most cases required costs budgets to be prepared for the first time and with judges new to costs budgeting it was a difficult and challenging period. We are now much more comfortable with costs budgeting. We work with over 50 law firms nationwide and are starting to see regular trends and patterns in terms of estimating future costs with those firms. This will enable us to help firms budget more accurately as time goes on.

Mitchell Decision

Everyone in the profession is concerned since Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1526, [2013] All ER (D) 314 (Nov) ruling. For the legal costs world, it had a great impact as costs work was traditionally fairly low risk but Mitchell turned that upside down. We are now much more focused on efficiency, diary management and reviewing deadlines to ensure we do not fall foul of any deadlines set by the Court or by the Civil Procedure Rules 1998, SI 1998/3132 (CPR).

What have been the key sticking points or successes of Jackson in your opinion?

Costs budgeting has been a bit of a sticking point due to the inconsistency of the judges. Some deal with it and some don’t. Some deal with it but don’t have a clue what to do. You just don't know what you are going to get.

We had one matter where the parties were ordered to file and serve costs together with additional information in relation to costs incurred pre-action and in respect of issues or statements of case costs. We spent a lot of money preparing the budget and associated documents. We turned up to the case management conferences (CMC) and the judge asked why we had prepared a costs budget and we explained we had been ordered to prepare one. The judge said that was an error and he wasn’t dealing with costs budgeting. I estimate the costs of that entire process were around. £6,000 on both sides.

Costs budgeting is good for clients if law firms do it properly, such as engaging with the client in the process. This way clients know what the litigation will cost them and can tailor it to their requirements (if they want a QC or want the Grade A to do all the work).

Another sticking point is, since Mitchell, defendants are more awkward and are trying to pick up on any delay or issue they can. The ruling has caused satellite litigation. Objections to relief applications are common even where it is very clear that the breach is trivial. I think the ruling has created a barrier between parties with common sense going out of the window.

Are there any aspects of Jackson that you would like to see reviewed?

I would like to see changes in the following:

  • the CPR (in relation to relief)—maybe to a half-way house between what it is now and what it was before
  • some guidance in the CPR with regards to proportionality—such as how judges should approach it
  • the CPR time recording guidance improved and enhanced so costs lawyers know exactly where time fits into the defined costs budgeting phases—the precedent guidance is woeful to say the least
  • the costs budgeting rules changed so clients have to sign the costs budget

How do you see Jackson developing over the next year?

It is clear costs budgeting is here to stay so I expect that to increase and the process to improve as judges get more used to it. We should have more case law giving guidance about topics such as proportionality, relief and extensions of time, which will greatly help lawyers. We should start to see things generally settle down with lawyers getting used to the rule changes and new procedures. Nobody likes change and I think that was a big factor in the uproar from 1 April 2013.

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

First published on Lexis®PSL Dispute Resolution on 1 April 2014. Click here for a free one week trial of Lexis®PSL.

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