Sir Vivian Ramsey on how arbitrators can learn from Jackson Reforms to improve costs efficiency

Sir Vivian Ramsey on how arbitrators can learn from Jackson Reforms to improve costs efficiency

Sir Vivian Ramsey, who recently retired from the High Court of England and Wales, delivered a keynote speech to open the conference of the School of International Arbitration, CCLS, QMUL on ‘Opportunities and Challenges in Construction Arbitration’ on 11 December 2014.

The speech, entitled ‘Making the arbitration process more efficient’, addressed how key changes introduced to English and Welsh civil court practice and procedure as part of the Jackson Reforms could be embraced by the international arbitration community to improve costs efficiency.

As those of you familiar with the Jackson Reforms will know, their overall purpose is to provide ‘access to justice at proportionate cost’. According to Sir Vivian’s speech, that too must be the overall aim of arbitration.

Sir Vivian summarised three areas in which key reforms were introduced:

Litigation funding

Changes in recoverability of uplifts on CFAs and after-the-event insurance; the introduction of Damages-Based Agreements (which are currently subject to review by the CJC); and, the encouragement of third party funding.

Litigation procedure

A fundamental shift in the approach to disclosure following the introduction of disclosure reports and the court’s ability to make a range of disclosure orders, including the ‘rely and apply’ approach that is commonly adopted in international arbitration; stricter controls on witness statements; changes in approach to expert evidence; and, detailed and robust case management to ensure compliance with rules, practice directions and court orders, made infamous by the Court of Appeal in Mitchell (described by Sir Vivian as a ‘difficult’ first case) and ameliorated by the same court in Denton.

Costs management

To ensure litigation is conducted at proportionate costs, which included the introduction of costs budgets, which haven’t proved popular and whose utility has been questioned.

In respect of each strand of reform, Sir Vivian discussed the opportunities for arbitrators and arbitral institutions to take another look at their procedures from a costs efficiency point of view. Amongst his submissions, Sir Vivian:

  • saw no reason why a form of costs budgeting could not be used in arbitration,
  • proposed that arbitrators be encouraged to adopt rigorous case management in the Denton vein
  • suggested that arbitrators should be under a ‘duty’ to encourage parties to settle their disputes in order to save costs

As Sir Vivian recognised, too often costs in arbitration are left until the end of the proceedings and there is more often than not a lack of transparency on costs. Indeed, a frequent frustration expressed by those involved in arbitration is that the matter of costs, i.e. which party should bear them and whether or not cost shifting is appropriate, receives insufficient and inadequate attention in some arbitral awards, with a perception that tribunals only address costs only as an afterthought.

As with costs in civil litigation, Sir Vivian argued that arbitration costs should be proportionate and that the Jackson Reforms are ones which can properly be applied to arbitration.

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About the author:

Barry specialises in international arbitration and commercial litigation. He trained and practised at Jones Day before joining Pinsent Masons. At LexisNexis, Barry is Head of Arbitration and Head of the Lexis®PSL Dispute Resolution Group.

In practice, Barry’s work included commercial, aviation and technology arbitrations pursuant to international arbitral rules, involving UK and international clients. He also has a background in general commercial, civil fraud and IT litigation, including experience before the High Court. While in private practice, Barry worked with a broad range of clients from the private and public sectors.

At LexisNexis, when not focused on the strategic development and operational requirements of the Dispute Resolution Group, Barry’s content work focuses on the law and practice of international commercial arbitration and investment treaty arbitration. In addition to his work for Lexis®PSL, Barry contributes to the LexisNexis Dispute Resolution Blog and New Law Journal on litigation and arbitration matters