Your hard working correspondent attended a dynamic
presentation by Professor Dominic Regan in the grand setting of the Grange City
Hotel in London earlier today and came away with a vivid insight into the up to
the minute state of the Jackson reforms.
For those living in Plato’s cave for the last demi-decade,
the Jackson reforms have been a maelstrom of change for civil litigation
lawyers, especially in the personal injury arena. Thankfully with guiding lights such as the wise
Professor, those of us hammering away at the coal face of justice have someone
showing the way in all this turbulence.
 |
| Hard working lawyer left, glamorous Professor right |
I won’t go into the detail of the Professor’s news and views;
if you want that, go to one of his energising lectures. Instead some of his
broader themes are worth mentioning. One
of the most profound reforms was the modification of the overriding objective
of Rule 1 of the Civil Procedure Rules.
Like constitutional lawyers, we have long enjoyed righteously reminding
Courts that cases must be decided justly, as if justice might proceed in any
other way. As a trainee solicitor long
ago in the summer of 1999 I proudly heard myself make this very point to a
patient District Judge who kindly and gently assured me that Courts had always
striven to make decisions justly long before the implementation of the Civil Procedure
Rules.
But the reforms implemented on 1st April 2013
have now added a slightly sinister sounding refinement to this golden axiom. From then on, cases must not only be decided
justly but also “at proportionate cost” and these words have influenced
judicial decision making even rather more markedly than expected since their
enactment. This has been working in
tandem with the new stricter approach to relief from sanction under CPR 3.9. Providing
stark reminders of just what can go wrong, Professor Regan highlighted how
serious the adherence to deadlines is now. Parties cannot seek to buy their way
out of trouble by offering to pay adverse costs as they once might have done.
This may be a shock to some firms and the way they operate their case loads.
As a consequence there is a focus on a newer concept of
proportionality as the measure of costs. Yet this new measure has yet to be
given any specifics of scale or measurement and it is feared much case law will
have to be developed to arrive at the right meter. The simple logic that if costs were
reasonable and necessarily incurred they were therefore proportionate is the
language of an earlier age. (Footnote: fear not too much, Home Office v Lownds still, according to Dominic, applies if a case
is issued prior to 1st April 2013 throughout the life of the case).
Other startling pointers were the suggestion of fixed costs
on the multi-track. As well as a flight to clinical negligence work,
catastrophic claims are also considered something of a refuge for claimant
lawyers as they are currently free of the shackles of fixed costs. It will be
interesting to see how multi-track fixed costs would compare to current costs
levels, just as it is illuminating to compare the new fixed recoverable costs on
the fast track to those costs claimant lawyers have been seeking to recover. The use of costs budgets for the big
commercial cases, even the heady heights of two million pound and up which
currently avoid them, was mooted as well.
There is as yet no more news on the consultation on the
discount rate from the Ministry of Justice and any possible changes to this
important point are still awaited.
There is much more that could be said. Professor Regan is a natural
orator and, in the eyes of this fan, a Cicero of our world of civil litigation.
See and hear him and learn much. He has a blog at
No comments:
Post a Comment