Implementing Jackson

I had fish and chips with Sir Rupert a fortnight ago. He is as resolute as ever. His views are unchanged. The recoverability of additional liabilities is iniquitous and farcical. What he did not know is that the new administration has decided that his proposals should be acted upon and soon.

Significant development

The appointment of Lord Young to look at health, safety and compensation issues strikes me as an incredibly significant development—happening as it did before we even had the budget. Those who practise in the field of injury may well feel twitchy. Lord Young qualified as a solicitor and was a director of Autohit which became Accident Exchange so he should know something about litigation costs. If stuck, he can turn to his son in law, Lord Justice Rix.
Some of Sir Rupert’s ideas are about to be trialled in various parts of the country. My beloved hot-tubbing, whereby expert witnesses can be called simultaneously and go head to head in the witness box, is now available in Manchester but all involved need to agree to this. Nicholas Bacon QC tells me that this autumn Leeds will be experimenting with the provisional assessment of costs. If you are not happy with what is allowed you can then go before a judge to argue. We are returning to a process older practitioners will remember well.

Active management

After a recent visit to Birmingham by the Master of the rolls and Jackson, I have been asked to report on the workings of costs management there in the Mercantile Court.

The scheme is again voluntary. HH Judge Simon Brown QC is in charge. He points out that under the CPR the judiciary has a duty not to manage but to actively manage litigation. His mantra is that costs management is inextricably linked to case management. That is unarguable. His talent is to get the proportionality message across at the outset before crazy costs are incurred.

It would not surprise me at all if MacDuff J, who was once the designated civil judge in Birmingham, were to be invited to become costs management supremo in injury work. He has a track record second to none. His recent comments in the nuclear test veterans ongoing litigation about the level of costs and when they should be paid must have given some relief to the defendants. There is no money for new technology in the courts; judges getting stuck in and managing cases at the outset with a firm hand does not require sophisticated hardware, just commonsense.

Loyalty

There is one other remarkable theme I discern recently and it is this. The judiciary, which is utterly loyal to Jackson, have started to take on board his views and I will give three clear examples. The most dramatic is the decision of the Court of Appeal in Gibbon v Manchester City Council, just published.
Heard at the same time and subsumed in the decision is the case of Blower where the court abandons the controversial approach taken in Carver v BAA two years ago. Miss Carver had gone to trial after rejecting an offer to settle made by the defendant some months earlier.

At the hearing she recovered approximately £4,000 and in so doing bettered the offer by £51. Traditionally, a claimant would still expect to get their costs because they had bettered the offer albeit by a negligible margin. However, the court took a new “open-textured” approach and held that the claimant be treated as the loser for it was not worth her while to struggle on to a hearing, incurring perceived distress and delay, for the sake of a miserable extra £51, Jackson in his final report stated, correctly, that this new test was unworkable.

How does one begin to value imponderables like anxiety? Was she anxious? Should she suffer in costs when she was the anxious party (a Michael Cook insight)? Well, after explicit reference to the Jackson report the court has reversed away.

The same court has just upheld a decision of the High Court to order that a libel action be tried without a jury in Fiddes v Channel Four. Tugendhat J thought that it would take more court time for a jury to be watching excerpts of material used in a television programme. The Master of the rolls presided over the appeal. He it was who described the Jackson recommendations as brilliant. While the reasons of the court to uphold the decision have as yet to be published it does chime with the stance that every possible effort be made to cut costs.

Electronic age

Finally, the senior master in Goodale v Ministry Of Justice earlier this year plainly accepted that electronic disclosure is here and, in a decision circulated worldwide, he ordered that the defendant complete a questionnaire identifying what documents existed in an electronic format.
Parliament moves slowly with both primary and secondary legislation. The judiciary has the power and, more significantly, the appetite to reform the process as quickly as possible. That has started already; Jackson is on the way in.

Dominic Regan is a legal writer & speaker on civil litigation matters. Thanks to Lesley Graves, solicitor, for her wisdom.
E-mail: dominic@dominicregan.co.uk
 

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