Implementing Jackson
Date: 19 February 2010
Authors: Dominic Regan
Issue: Vol 160, Issue 7405
Categories: Opinion, Costs
The greatest myth of the moment is that “Jackson will never happen”. It will and soon. Momentum is the word of the moment. Sir Rupert, who is to oversee the construction of the costs edifice he designed, is a determined man.
The government has accepted the substance of the report and is already looking to cap success fees in defamation at 10%, a proposal independent of the Jackson report, but indicative of acceptance that additional liabilities inflate costs. If (high) success fees are bad in defamation then why should they be tolerated elsewhere? The master of the rolls made it clear on publication day that the research had been done and the next step was implementation, not debate. To whom would one even make submissions?
The Jackson team has dispersed. Having spent a year of his life considering his subject, Sir Rupert is in no mood to entertain challenges. The job is done. Both the Ministry of Justice and Civil Justice Council are gearing up to implement recommendations.
Referral fees
Referral fees represent one area where the door may remain slightly ajar for while the primary proposal was to ban them an alternative position of capping them at £200 was suggested. Plainly, this does anticipate a judgment being made as to the best course, but it is a rare exception. Most recommendations, carefully summarised at pages 463–471 in the Final Report are unequivocal.
Imminent developments
A torrent of developments are imminent—by the end of next month protocols will have been rewritten, third party funding guidance will have been published, and futher announcements made.
The impact of an inevitable general election may also be overstated. There is substantial ability to bring about change without legislation.
Case management powers under CPR 3.1, not used extensively to date, bestow tremendous latitude. The court can require estimates at anytime, impose timetables and indeed make any other order so as to manage an action and so further the overriding objective.
His Honour Judge Simon Brown QC has attracted considerable praise running the Mercantile Court in Birmingham. When I was in Birmingham last week I was told that several claimants, troubled by the “Brown approach”, were now issuing anywhere but Birmingham.
Firm case management underpins his success. He follows in the footsteps of another judge who made his mark as designated Civil Judge in Birmingham, Sir Alistair Macduff.
He was then elevated to the High Court bench, a reward in part for demonstrating that, using powers in the CPR since April 1999, the Judiciary can manage litigation if it has the will to do so. Other judges, if so minded, can easily emulate this approach.
Firm approach
On taking a firmer approach to default, Sir Rupert in his interim report suggested that the Judiciary could issue a declaration of intent and say that from a date in the near future breach of Orders or Directions would attract a punitive response.
In mid-March, incidentally, the Court of Appeal is to re-visit the uncertain area of abuse of process in two appeals, one being Dixie V British Polythene where it was held to be an abuse for a claimant who had failed to serve a claim form in time started proceedings afresh, still being within the primary limitation period.
Further changes might be achieved were the Court of Appeal to re-visit decisions which are seen by Jackson as unacceptable. Two obvious decisions which cannot survive indefinitely are Carver and Lowndes. Proportionality trumps necessity when it comes to costs. Disproportionate costs do not become proportionate even though they are incurred in taking steps fairly seen as necessary.
Fixed costs in the fast track will have an immediate and significant impact upon costs. The Final Report contains specific recommended bands of costs to be allowed.
A statutory instrument was used to introduce predictable costs for unissued road traffic claims back in 2003 and I see no reason why the same device cannot be used now. It is a clear possibility that this change could be introduced as soon as October this year or failing that then in April 2011. It would, of course, be remarkable if every recommendation suggested by Jackson LJ is implemented. Those which demand primary legislation (itemised at p 472 in the Final Report), such as abolition of the indemnity principle, could take a while to implement.
Another Jackson myth is that the whole package needs to be introduced as a single entity. Not so. The judiciary and government want to move quickly. A piecemeal approach is not necessarily bad. Let us see where we are by April next year. I am certain that much will have been done by then.
Dominic Regan is a legal writer, broadcaster & speaker on civil litigation matters. He is professor at City University London and a member of the Civil Justice Council costs committee. Website: Dominic@dominicregan.co.uk He is to chair a free New Law Journal webcast next month on how Jackson will affect injury litigation.
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