Thursday, 11 July 2013

An Overriding Amendment

Notes from a seminar with Professor Dominc Regan

Your hard working correspondent attended a dynamic presentation by Professor Dominic Regan in the grand setting of the Grange City Hotel in London earlier today and came away with a vivid insight into the up to the minute state of the Jackson reforms. 

For those living in Plato’s cave for the last demi-decade, the Jackson reforms have been a maelstrom of change for civil litigation lawyers, especially in the personal injury arena.   Thankfully with guiding lights such as the wise Professor, those of us hammering away at the coal face of justice have someone showing the way in all this turbulence.

Hard working lawyer left, glamorous Professor right
I won’t go into the detail of the Professor’s news and views; if you want that, go to one of his energising lectures. Instead some of his broader themes are worth mentioning.  One of the most profound reforms was the modification of the overriding objective of Rule 1 of the Civil Procedure Rules.  Like constitutional lawyers, we have long enjoyed righteously reminding Courts that cases must be decided justly, as if justice might proceed in any other way.  As a trainee solicitor long ago in the summer of 1999 I proudly heard myself make this very point to a patient District Judge who kindly and gently assured me that Courts had always striven to make decisions justly long before the implementation of the Civil Procedure Rules. 

But the reforms implemented on 1st April 2013 have now added a slightly sinister sounding refinement to this golden axiom.  From then on, cases must not only be decided justly but also “at proportionate cost” and these words have influenced judicial decision making even rather more markedly than expected since their enactment.  This has been working in tandem with the new stricter approach to relief from sanction under CPR 3.9. Providing stark reminders of just what can go wrong, Professor Regan highlighted how serious the adherence to deadlines is now. Parties cannot seek to buy their way out of trouble by offering to pay adverse costs as they once might have done. This may be a shock to some firms and the way they operate their case loads.

As a consequence there is a focus on a newer concept of proportionality as the measure of costs. Yet this new measure has yet to be given any specifics of scale or measurement and it is feared much case law will have to be developed to arrive at the right meter.  The simple logic that if costs were reasonable and necessarily incurred they were therefore proportionate is the language of an earlier age. (Footnote: fear not too much, Home Office v Lownds still, according to Dominic, applies if a case is issued prior to 1st April 2013 throughout the life of the case).

Other startling pointers were the suggestion of fixed costs on the multi-track. As well as a flight to clinical negligence work, catastrophic claims are also considered something of a refuge for claimant lawyers as they are currently free of the shackles of fixed costs. It will be interesting to see how multi-track fixed costs would compare to current costs levels, just as it is illuminating to compare the new fixed recoverable costs on the fast track to those costs claimant lawyers have been seeking to recover.  The use of costs budgets for the big commercial cases, even the heady heights of two million pound and up which currently avoid them, was mooted as well.

There is as yet no more news on the consultation on the discount rate from the Ministry of Justice and any possible changes to this important point are still awaited.

There is much more that could be said. Professor Regan is a natural orator and, in the eyes of this fan, a Cicero of our world of civil litigation. See and hear him and learn much.  He has a blog at which should be subscribed to. Not only are their legal insights but also much wisdom on wine and champagne.

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