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Review of the Jackson/LASPO changes from Friday's CJC conference

24 March 2014

On Friday the Civil Justice Council hosted the most significant debate yet on where we now stood upon implementation of the Jackson/LASPO changes 12 months on. The conference also showed where plans are up to with intentions to develop other areas of reform. We attended the conference alongside stakeholders from all interested bodies, as well as the judiciary, and it included presentations from both Lord Justice Jackson himself, and the Master of the Rolls Lord Dyson. The outcomes from the conference affect all claims types.

Mitchell and compliance

On the strict approach to compliance with orders as seen to be needed from the Mitchell case, that as expected is here to stay. Lord Dyson said he was “fairly unrepentant" about the decision, but accepted that more decisions were needed from the Court of Appeal to deal with further points arising out of cases, and that it would take another 12 months for the new approach to compliance to bed down. The fact that some district judges were though going too far with their harsh decisions was recognised, the remedy there is an appeal. The new system was, it was said, better than the old one under which deadlines were often ignored. Predictably, no change there then.

The issue of non-compliance due to delays by experts was recognised and remains an issue. To what extent should a party be penalised by the conduct of experts over which its control will be limited? This is likely to be an area which the Court of Appeal will have to consider soon. On the other hand, the risk is that experts may respond to the increased pressures by withdrawing from the work.

Buffer orders to be allowed – and other co-operation to be expected?

On buffer orders, as expected, the green light is expected to be given in the next couple of weeks. They are not to be seen as a watering down of the new strict approach – again as we had anticipated. Provision for buffer orders is in fact expected to be written into the CPR so they will be of equal application to all types of case without judicial intervention. They will enable parties to continue to co-operate with each other.

There was the idea of an agreement under which certain types of claim could be handled where the parties would agree not to take compliance points, presumably more suitable to high value claims where building a co-operative approach in order to achieve the right end result could be blown off course by arguing whether or not a court direction had been met. This might reinforce existing practice in, for example, catastrophic claims.

Taking unfair advantage not allowed

As a further warning towards the right approach to litigation, there was a recognition that trivial or insignificant breaches should not be exploited by opponents, as was seen in the recent High Court decision in Summit Navigation v Generali Romania case, in which the defendants tried to take what was seen to be a tactical advantage as a result of the claimant being late in complying with an order until the morning of the following day after the deadline had passed, and where the defendants were therefore penalised in costs as a result.

Costs budgeting and management

On costs management, the conference heard that all involved, judges and lawyers, were on a learning curve, that time to bed in was again needed, and while it hardly needed saying, the changes were here to stay.

Claims volumes

On access to justice and the related question of claims volumes, there was no consensus. While APIL had referred to its members anticipating a 30% drop in claims numbers, there was some acceptance that no clear conclusions could be drawn from the Portal Company data, and there was also reference to MoJ stats showing no reduction of either new claims notified or new claims issued since the reforms were introduced. More time was needed to tell.

The future?

As to the future, these areas were highlighted.

  • A full review of the changes introduced last year is planned for 2016-18. Any sooner is thought to be too early to assess this area.

  • Fixed costs for all fast track cases and not just for RTA, EL accident and PL injury claims submitted to the portal and then dropping out was seen as a target. Indeed the quantum band under which fees were fixed could then increase above £25,000.

  • It is still expected that the only exclusions from costs budgeting will be cases worth over £10m, in whatever court they are issued, though Part 8 claims will also be excluded.

  • QOCS may well be extended from covering only injury claims to other types of case. Claims against the police were mentioned as one suitable type of claim for QOCS. This of course would mean that while the costs of ATE premiums could not be recovered by claimants in those cases, it would become much more difficult for defendants who successfully defend those claims to recover costs from the claimant.

  • Control of costs by costs budgeting pre-litigation was of course recommended by Jackson in his final report. This is still seen as an area of focus, but it looks as though this is a medium term project, and that post-ligation costs budgeting will have to be allowed to get itself up and running first.

  • On the use of DBAs, there was pressure from the conference for action from the MoJ. Key voices were heard both in favour of allowing hybrid DBAs so that lawyers could be paid both an hourly rate for their work as well as a contingency fee out of damages for a successful result, and also of freeing DBAs from the indemnity principle (which of course would mean that insurers would retain no interest in the amount of the contingency fee payable).

In conclusion

So in conclusion – the Jackson bandwagon continues to run. While Lord Justice Jackson is not one of the six Court of Appeal judges who hear appeals on points in relation to the reforms, there remains strong judicial support for the package of measures brought in last year. The new Mitchell strict approach to compliance is here to stay, but buffer orders are coming in to help by providing a degree of flexibility, so that co-operation between the parties should not be seen as a thing of the past. It seems to be accepted that it is too early to say how successful the reforms have been in meeting their goals, and that it is now expected that a full review of them is another two to four years ahead. We would continue to expect to see progress on some of the areas for development mentioned above in the meantime.

By Simon Denyer

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.