Postscript to Dominic Regan interview on Jackson and costs management

The transcript of my interview with Dominic Regan (see Professor Dominic Regan on why the Jackson Reforms mean the biggest ever upheaval for UK litigation) seems to have attracted some attention. There are two follow-up links in which you may be interested, both to points referred to during the interview.

The first is Dominic’s interview with Lord Justice Jackson which he has now written up for New Law Journal under the heading Jackson on Jackson. Those with an interest in electronic disclosure will focus on two things – the promise of training for judges in costs management and this blunt warning to practitioners towards the end of the article:

They should start to think about costs budgeting now and also look to embrace technology. The days of paper are numbered.

Many in my profession, I know, treat a deadline as the starting gun. I remember fondly my conversation with a law firm partner six months after the UK Bribery Act came into force. I mentioned it as a reason for lawyers to become acquainted with the technology which exists both to identify deviations from the norm in a proactive way and to enable efficient reaction to requests by regulators or prosecutors. “The Bribery Act”, he said. “Ah, remind me…”.

There will be many, I think, who will first come across the concept of costs budgeting for eDisclosure when they are attending a case management conference. They will, perhaps, have been expecting to treat it as an old-fashioned summons for directions, from back in the days when someone junior was sent to court to collect some pro-forma box-ticking.  How appalled they will be at the idea that they should be expected not merely to estimate their costs but to explain why they should be incurred and to confirm that there is no better or cheaper way of handling the case.

The second reference worth following up from my interview is to the recent Cost Management Pilot Interim Report.  Three distinct areas are worth looking at – the reasons why a rule change is needed, the description of how the pilot works, and the reactions of those who have been involved, whether as judge or solicitor.

I was present when Lord Justice Jackson launched the cost pilot in Birmingham, and I have to say that I was unclear why it was necessary to obtain the agreement of the parties for costs to be managed in the pre-emptive way intended by the pilot. My understanding was that a judge with a duty of active management, with a wide discretion, and with the overriding objective as the backdrop, had all the powers which he or she needed to regulate the costs which the parties intended to spend. The report addresses this (I was not the only one with this mistaken view) and explains the difficulties in simply imposing cost management by the diktat of individual judges.

If the factual descriptions are helpful, the statistics are less so because the sample is so small.  We are left, effectively, with a series of anecdotes from which it is hard to extract meaningful generalisations. That does not devalue either the pilot or the interim report –  it is helpful to have the reactions, which are by no means uniform, of those who have been involved. Much of it comes down to two things – an alleged disproportion, in some cases, between the work which must be done to prepare the budget and its objective, and some complaints about the form itself. The two subjects are logically interlinked if one assumes that simpler forms would give rise to less work.

I rather agree with the line taken by Dominic Regan in our interview to the effect that one might have different forms for different sizes of case. As to the mechanics of form filling – well, that is one of the things which a proper pilot is designed to flush out.

The broad principal – that a solicitor ought to know by the case management stage what work is necessary for the case to be heard justly – is not one which there can be any real argument about. This is not just about obligations to one’s own client or to the other side; it affects also the availability of court resources. The overriding objective includes an express obligation placed on the court not merely to save expense and to deal expeditiously with the case but to allot to it “an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases” [Rule .1(2)(e)]. The overriding objective also includes a duty to consider “whether the likely benefits of taking a particular step justify the cost of taking it” [Rule 1.4(2)(h)].

How can the judge form a view on either of these those things if  the parties are not in a position to give him or her the base information which must underlie such decision-making?

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