As early as 2009 in his final report on reform of costs and civil procedure rules, Lord Justice Jackson made it very clear that his recommendations would herald radical and seismic changes to the conduct of civil litigation in the United Kingdom. When these became law in the LASPO ACT of 2012 and finally began to be implemented on 1st April 2013 the legal profession had no excuse to be shocked by the change of culture in the civil courts. The new watchwords were EFFICIENCY, ROBUSTNESS and COMPLIANCE. No longer was a culture of justice at any cost to be tolerated. The new regime would be justice at proportionate cost. To achieve this civil procedure rules were rewritten and budget control of cases became paramount in the new system. So nearly a year since its implementation, it is a prudent time to assess how the new system has influenced actual cases. To claim success, the new regime needed to win the support of the judges in the civil courts, for in the final instance it is their interpretation of and adherence to the rules that matter
With any new system, especially one aiming to tighten up and
reform, a strict and disciplined regime might be expected. If leniency and
tolerance of slack practices, such as non-compliance on court orders such as
filing witness statements on time, exchanging budgets 7 days before the
hearing, were allowed, then the reforms would have been a waste of time and
effort. Accordingly, the judges charged with interpreting the new regime have
gone for tough adherence to the rules. The
most publicised case to date has been Mitchell v News Group Newspapers, a defamation claim. The
claimant’s solicitors were late in filing their budget. The judge, Master
McCloud, applied the appropriate sanction, which was to treat the claim as
having filed a budget to claim only applicable court fees. Such would have lost
the claimant fees of over £500, 000 had the claim succeeded. The new sanction
was CPR 3.9. A second hearing before the same judge, for relief against the
sanction failed. The mitigating factors put forward by the claimant’s
solicitors included staff shortages and pressure of work. The lack of
indulgence marked the new stricter interpretation of CPR rules. The judge also
cited that another case had lost its slot in the court’s timetable because of
the failures.
Careful and fair use of court and judicial resources had
been another aim of the Jackson reforms. Basically the judge had been
unprepared to accept any excuses in the breach of the rules and court
directives. Her judgment emphasised that the “new overriding objective was not
only to deal with cases justly, but at proportionate cost to ensure compliance
with rules, orders and practice directions” and that ,“ the stricter approach
under the Jackson reforms has been central to this judgment.”
This was the first case where the Jacksonian principles had
been applied and the first to go to the Court of Appeal. Again strict adherence
to Jackson’s reforming philosophy meant that the original judgments were
upheld. In November 2013 the Master of the Rolls, Lord Dyson emphasised that
their decision was “harsh”, but justified it, “ if we were to overturn the
decision to refuse relief, it is inevitable that the attempt to achieve a
change in culture would receive a major setback…. We hope that our decision
will send out a clear message. If it does, we are confident that, in time,
legal representatives will become more efficient and will routinely comply with
rules, practice directions and orders. If this happens, then we would expect
that satellite litigation of this kind, which is so expensive and damaging to
the civil justice system, will become a thing of the past.”
With senior judges appearing so robustly supportive of the
Jacksonian philosophies of greater efficiency, better business practice and
careful cost management, then it is hardly surprising that recent judicial
decisions might appear harsh and tough. But to achieve a more disciplined and
compliant civil justice system, they would need to be. It is always easier for
a new regime to start out tough and relax later. Too much tolerance and a
relaxed approach now would not be the way forward to achieve any meaningful
change in civil litigation culture.
After all, that is what the Jackson reforms are all about.
This article was written by Vannin Capital.
Visit their website to learn more about how the Jackson Reforms could affect
you.
No comments:
Post a Comment