Implementing Jackson (2)

Whither Jackson post the election? Dominic Regan shares his predictions

There are 219 distinct proposals made in Sir Rupert Jackson’s Review of Civil Litigation Costs. Now what happens? Those who want nothing to change should look away now.

In the run-up to the election Dominic Grieve QC, the new attorney general, said his party was committed to major reform of legal costs. The conservatives are interested in the ideas of Sir Rupert, but not necessarily committed to them. Further consultation will take place on implementation. It is their desire to move quite quickly. There you have it. Major and prompt reform is still going to occur. All this in the week that The Guardian reported that London solicitors who acted for claimants 3,000 miles away in Africa had presented a bill for £105m, the cost of recovering damages of £30m. The success fee claimed of £40m was the same as the cost of the new hospital built in Barnet.

Resistance

There is substantial resistance to the key Jackson proposal of scrapping the recoverability of additional liabilities. A white paper looks certain which will mean more delay and then another round of consultation. I must say that from here it looks like this is not going to happen. Primary legislation would be necessary. The failure of Parliament to limit success fees to 10% in defamation actions last month is illuminating. MPs from all parties agreed that this would undermine access to justice. There are perhaps 200 libel actions a year. Rarely are they pursued by people who cannot afford to litigate. If that measure did not make it then what chance of  ending recoverability for those many might see as more deserving?

Alternatives to legislation

Legislation is only one way of implementing change. Lord Neuberger, the master of the rolls, delivered a fascinating speech to the Personal Injuries Bar Association (PIBA) at the end of March. He began by pointing out that the Jackson recommendations had the enthusiastic support of the senior judiciary. This is relevant because the judiciary already has the ability, often neglected, to impose control and reform using case management powers.

Who would argue with Sir David when he observed that case management is still in its infancy? Powers to manage are extensive: look at the list identified in CPR 3.1. We need judges who are prepared to get stuck in and actively manage (as the overriding objective requires them to do). What about a split trial or summary judgment? Might a preliminary issue be taken? Are clients aware of costs liability? How about getting the parties in at the case management stage?

This is not theory. His Honour Simon Brown QC is doing all of this and more in the Birmingham Mercantile Court: an experiment that is not as expensive as some critics assert. On the contrary, that early interventionist approach can save vast amounts of time and money. Sir Rupert observed this and was impressed. It is tragic that simple steps are overlooked. There is no hope of the courts getting big budgets for technology but what they do have and in abundance is wisdom and common sense.

Proportionality

Proportionality is the essence of the final Jackson Report. We must get to a point where sensible compensation is not dwarfed by ludicrous costs. The judiciary again could take the initiative here by backing off from the controversial Lownds’ decision in 2002 and restating the law. The luxury of running up bills without regard to the value of the case must cease as indeed must unreasonable conduct by defendants.

In his PIBA speech Lord Neuberger took me back to 1978. Lord Pearson published a profound report on injury. Was tortious liability an anachronism and ought we to introduce a no fault scheme? If litigation costs cannot be made proportionate then, he suggests, we might look afresh at such a change.

Muiris Lyons, the new Association of Personal Injury Lawyers president, spoke recently of the plight of those whose lives are shattered through no fault of their own. Why do we cling to a system where compensation is dependent upon the fault of others? Ought not the blameless recover compensation regardless of identifying a culpable tortfeasor, something not always easy to do?

Legal minds

Finally, I would like to say something about the new legal team in government. Ken Clarke QC is a smart choice for lord chancellor: he is sensible, pragmatic, and robust. Those who seek to block him will be flattened. Dominic Grieve QC has a fine track record on protecting human rights in a sensible manner. Our new solicitor general, Edward Garnier, has great experience of defamation work. Consequently, we are looking at the most experienced team of law officers in living memory. Combine that with the master of the rolls and a lord chief justice worthy of his title and we end up with a magnificent team. None of them wants to destroy our legal process but it will disintegrate as a result of losing credibility if we are not careful.

Dominic Regan is professor at City University London & a member of the Civil Justice Council osts committee.

Website: Dominic@dominicregan.co.uk. Dominic would like to thank Teresa Aitken for help with supplying transcripts. (For background story see “Implementing Jackson”, NLJ, 19 February 2010, p 234.)
 

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