Countdown to Jackson
Date: 08 January 2010
Authors: David Greene
Issue: Vol 160, Issue 7399
Categories: Opinion, Costs
There is much speculation—and perhaps in some quarters trepidation—about the impending report of Jackson LJ on the costs of civil procedure. In New Law Journal last November (NLJ, 20 November 2009, p1600), District Judge Richard Chapman and Professor Dominic Regan added their predictions of what the report, which is due out next week, may say, against the urgent need to address the problems with the process and particularly costs.
In certain respects it may not be so hard to predict what the report will recommend, bearing in mind that we are already seeing some solutions to the problems either introduced on a permanent basis or being trialled in pilot projects. These are not necessarily the direct result of Jackson LJ’s work but one might say that they have a slight “Jacksonesque” feel about them.
Cost management
The cost management project now running in the defamation court is such an animal. It reflects many of the themes expressed by Jackson LJ. CPR 51D prescribes close management of costs by the court and the mandatory nature of the budgeting process. The Birmingham pilot which is voluntary is very much a Jacksonesque animal. It was established at Jackson LJ’s instigation. That again entails closer court management of costs, albeit without the same dramatic effects as the pilot project in the defamation court.
These pilot projects are, of course, simply trials and it remains to be seen whether or not they succeed. More concerning for practitioners are permanent changes brought in at some pace which are bound to have substantial knock-on effects and unintended consequences.
The classic recent example of the dire consequences of such legislation and changes to procedure was the introduction of the regulations relating to conditional fee agreements (CFAs). The history of what happened to those regulations is well known. In short, they turned out to be a disaster because they gave rise to a vast amount of satellite litigation with which the courts are still dealing.
The Woolf reforms, of which the introduction of CFAs became part, were intended to reduce satellite litigation and provide access to the process of justice at a reasonable cost. The regulations for CFAs and the associated rules did exactly the opposite. The position was corrected some years later but here we are still litigating those issues four years after the changes which were intended to cure them.
Recent changes
We have more recent changes to the rules that had the entirely opposite effect to what was intended and have led to confusion and satellite litigation. Part 6 was an early example of the intellectual chasm between the drafters and the judiciary. Drafted to add certainty to the process, the decision in Godwin led to a complete redrafting of Pt 6 (see Godwin v Swindon Borough Council [2001] EWCA Civ 1478, [2001] 4 All ER 641).
The more recent example is under Pt 36. This was changed in 2006 and was intended to smooth out the problems with the old Pt 36. The decision in Carver, however, has ridden through Pt 36 with a swathe of uncertainty and more recently there appear to be differing views as to the effect of a Pt 36 offer as “accord and satisfaction” of the claim (see Carver v BAA Plc [2008] All ER (D) 295 (Apr), [2008] EWCA Civ 412).
Now we hear from Professor Regan that Jackson LJ may consider a complete rewrite of Pt 36. The changes to Pt 6 and Pt 36 were long considered.
The concern for practitioners is that following Jackson LJ’s report permanent changes are made speedily giving rise to unintended consequences. Unfortunately two of the recent changes seem likely to bear that epithet. The change at CPR 44.12D places limits on the ability to recover the premium for any after-the-event insurance in the event of settlement of threatened “publication” proceedings.
The changes were made after a 10-week consultation period contrary to standard practice and with few determined facts. The consultation paper stated that there were no statistics for the number of cases that settle prior to the commencement of proceedings. The consultation ended on 6 May last year and new rules were rushed immediately through the Rule Committee.
Wider change
Even more worrying is the wider change that was tagged onto the back of the change in defamation in amendments to CPR44.3B which provide that, subject to the court’s consent, a failure to disclose the existence of an “after the event” policy within the time limits set out in the Practice Direction will mean the premium paid will not be recoverable.
One can understand the principle behind this provision but surely we can foresee that a simple slip by solicitors, which is bound to occur in the early days, is going to lead to substantial satellite litigation before the Court of Appeal establishes the criteria on which the court will give its consent to notification out of time. No doubt Jackson LJ will recommend substantial changes to the regime but if we are going to achieve desired results let us give some time to thinking through the changes to avoid the mistakes of the past.
David Greene, consultant editor NLJ
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