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On 20 October, Lord Justice Jackson delivered the Keynote speech at the Law Society Conference 'Commercial Litigation: the Post Jackson World'. In his speech, he sought to address two areas he considered had suffered during the implementation of the Jackson Reforms and which he felt were of particular interest to commercial lawyers. These were DBAs, where he came out in support of introducing hybrid DBAs, and Relief from sanctions where he stated that he 'loyally' stood by the majority decision in Denton.
In relation to DBAs, he concluded that the problems with DBAs remain and that it 'now needs serious attention'. He referred to the fact that the Government is re-looking at the DBA regulations and expressed a hope that the proposed changes will be subject to a consultation process to give practitioners an opportunity to comment on the changes.
Hybrid DBAs, or rather the lack of, are perhaps the most controversial aspect of the DBA regulation. While the Government's stance is that it needs to be persuaded that there is a good reason for having hybrid DBAs, Jackson is convinced that there is. He sets out eight reasons as for the need for the inclusion of hybrid DBAs in the regulation. In summary:
There remains an element that object to hybrid CFAs being introduced. Jackson takes the stance that that element is the one that opposes the use of DBAs ie those that are on the receiving ends of claims which would be funded by them as well as insurers. He is very firm in his view that there is a need to stand firm against such powerful vested interest and he suggest that commercial lawyers should set up a working group to:
'(i) to analyse the numerous matters of detail on which there is concern and
(ii) to assemble the evidence and make out a case for hybrid DBAs.
It may be sensible to investigate the position overseas in greater detail than I have done in this paper and to undertake some market research. If recommendations for reform are to carry weight, they need to be evidence based.'
Lord Jackson also noted that he was still of the view that the indemnity principle should be abolished; this was a recommendation which he put forward in his Final Report but which was not implemented. In his view it no longer serves any useful purpose, rather it results in 'futile' satellite litigation. He hopes that its abolition might be considered again alongside review of the DBA regulations.
Lord Jackson's full speech is available here.
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Janna is a dispute resolution lawyer. She deals primarily with cross border issues and is active in the work being undertaken in relation to the implications of Brexit for Dispute Resolution lawyers. Janna also heads up a LexisNexis costs team bringing together expertise from across the company to deal with the costs issues facing the profession.
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