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Three months have now passed since the implementation of a major tranche of the Jackson Reforms. The LexisNexis Dispute Resolution team has been looking at the key court decisions to date and assessing what assistance these cases can provide in interpreting the new provisions. In particular, attention is drawn to areas where practitioners need to exercise care, at least until a binding Court of Appeal decision is in place.
In the fourth of a continuing series of posts highlighting the main areas of the update we now consider case management. Some of the key points are:
More rigorous scrutiny of applications
Practitioners should be very clear that the days of easily obtaining an extension if the application is made prior to expiry of time have gone.
Latitude in the early days
In some cases the courts provided some latitude on the basis that although the application was heard after 1 April 2013 it was made prior to that date, with the court expressly stating that had the application been made after 1 April it would not have been allowed. In other cases however the court is applying the new position regardless of the transitional period and practitioners should be aware of this.
Relevance of old authorities
These may still apply but the courts will also look to see what impact the new provision in the overriding objective has in relation to the way in which it will exercise its discretion.
Court’s own initiative
The courts are now supposed to be engaged in more active case management which may involve orders made on the court’s own initiative. If a party is unhappy with the order made, the approach the court will take will depend on whether the parties agreed to the court making an order without a hearing (CPR 23.8(b)) or whether the court itself had considered that a hearing was unnecessary (CPR 23.8(c)). The issue of whether a party can appeal an order where the court considered a hearing to be unnecessary remains unclear.
We are interested to hear your own experiences as well. Please leave us a comment.
You can read the rest of the series Jackson Reforms: Update Three Months On by clicking the links below:
The full content of this update is available to subscribers of LexisPSL. If you are not a subscriber, please click here to find out more and to access a free trial.
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Janna is a dispute resolution lawyer with a Masters in Construction Law and Dispute Resolution. During her time in private practice at both Herbert Smith and Denton Wilde Sapte (now Dentons) she worked on complex international disputes, both litigation and LMAA arbitrations, dealing with technical cross border issues.
Janna deals primarily with cross border issues and is active in the work being undertaken in relation to the implications of Brexit for Dispute Resolutions lawyers. She also heads up a LexisNexis costs team bringing together expertise from across the company to deal with the costs issues facing the profession and was a contributing author for the Cook on Costs supplement dealing with the Jackson reforms. Janna is a frequent contributor to the legal and professional press, including the New Law Journal and Counsel magazine.
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