ONLINE EXCLUSIVE: Regan on Jackson
Date: 08 September 2011
Authors: Dominic Regan
Issue: Online only
Categories: Opinion
Will he ever shut up? Probably not, but practitioners should draw comfort and enlightenment from the recent pronouncements of the great reformer. Speaking in Singapore earlier this month, Sir Rupert revealed his views about the latest government consultation on change.
Spring awakening
Those who thought that things couldn’t get any worse woke up one morning in spring to see that the Ministry of Justice was looking to triple the small claims limit to £15,000 and to extend the road traffic accident (RTA) online claims portal threshold from £10,000 to £25,000. Compulsory mediation was also mooted. Consultation here closed on 30 June and a government response is certain in the autumn.
Those who think that Jackson is out to kill them should be pleasantly surprised. Sir Rupert says what he honestly thinks; he does not play to any audience. Incidentally, sitting in the Court of Appeal recently he has regularly dissented from the majority opinion.
Small claims success
The small claims process as it currently stands is an “undoubted success” but it by no means follows that the ceiling should be increased. To put the limit up to even £10,000 would put considerable pressure upon the judiciary for it is certain there would be a drastic increase in the number of litigants in person. “For the ordinary citizen £10,000 is a large (and possibly devastating) sum to lose through the operation of a rough and ready/informal procedure”. Word perfect. I hope those who sneered that this man did not get it will see encapsulated in that sentence wisdom and concern.
A distinct small claims track for businesses might be viable. When taking soundings in the summer of 2009, it was obvious that he was concerned about small enterprises being betrayed by the legal system with claimants unwilling to claim for dread of wildly disproportionate costs becoming payable.
Jackson concludes that the mainstream small claims limit ought to be left alone with perhaps a court discretion to apply a limit of £10,000. If the worst happened then an increase should only be up to £7,500.
Promising portal scheme
Although the portal scheme is seen as promising, he thinks it is too early, aged but 16 months, to extend it. Let it bed down and eventually extend it to other categories of injury claim such as accidents at work. However, it all screams for simplification. The current RTA portal generated documents of huge length. Every requirement adds to the cost so reduce cost by cutting out over-elaborate demands.
Lord Justice Jackson thinks it right to extend the portal into clinical negligence but then immediately concedes that “such a scheme is unlikely to be used often”. Is it therefore even worth the effort, I wonder?
Fixed costs
In issued cases we should have fast-track fixed costs, as proposed in chapter 15 of the final Jackson report. Two important concessions made by him are that the figures he proposed are out of date already and, as and when implemented, they should be reviewed annually without fail. Expert fees are at large. Massive savings could be achieved by having fixed fees, an eminently sensible proposal. Whilst the present consultation asked if the fast-track limit ought to go straight up to £50,000, Sir Rupert is more cautious and thinks that a modest hike to £30,000 ought to be the first step with a further increase down the line. Softly, softly is the recurring tone of his approach.
Compulsory mediation is not on. Whilst ADR is, potentially, effective it will not work if foisted upon unwilling parties. By all means explain, encourage and facilitate but do not push it down the throats of parties who can clearly be whipped in costs for unreasonably rejecting the exercise anyway.
Singapore sling
You might think that a judge and former barrister would look after his own. I fear that that was so in the past. No more. In the Singapore speech, reported instantly by Chris Dale on his blog (www.chrisdale.wordpress.com), Jackson described our Bar as having taken “a lordly lack of interest in costs”. That must end. The judiciary is well able to assess damages. A like skill to deal with costs is essential. I know that MacDuff J is superb on costs and he has plainly inspired HHJ Simon Brown QC in Birmingham to emulate him.
One further warning to trouble the indolent was floated in Singapore. Delay and breach of Rules and Orders is commonplace. A much stricter approach is promised. Singapore faced a backlog of stale litigation. The authorities got a grip by imposing clear deadlines, vigorous and active case management and, a phrase that will make certain lawyers reach for the tranquilisers again, automatic striking out. Oh yes. Fail to take a procedural step within a year and there will be no action left to take a step in.
A final thought. Will the government listen to the thoughts of Sir Rupert which I have faithfully recorded above? Since everyone from David Cameron down has said, in writing, that Rupert is God, however can they turn around now and say he is wrong?
They can’t.
Professor Dominic Regan provides in-house training on both Pt 36 and Jackson reforms. With thanks to Chris Dale.
E-mail: krug79@gmail.com Website: www.profdominicregan.blogspot.com
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