Uncertainty means expense as we wait for the Jackson rules

An article by Neil Rose on the litigationfutures site is headed 10 weeks until Jackson and still no rules: LSLA chief warns of chaos. The reference is obviously to the wide-ranging reforms to the Civil Procedure Rules due to take effect on 1 April. The LSLA is the London Solicitors Litigation Association, whose president, Francesca Kay, does not understate things when she describes this as “wholly unacceptable”.

The case management aspects of the rules which relate to eDisclosure include the extension to a wider range of cases of the duties to discuss eDisclosure, a “menu option” which replaces the present default of standard disclosure, express emphasis on the judicial duty to direct the methods for giving disclosure and, of course, the new budget provisions.  Or so we believe – until we actually see the rules, we can only assume that they will follow what was said in Lord Justice Jackson’s speeches of last year, but for which we would be entirely in the dark. Even if the form is identical, we have yet to see the all-important transition provisions.

Lord Justice Jackson has, of course, been seriously ill, and it is no reflection on him that there has been this delay.  The Civil Procedure Rule Committee has all the drawbacks, as well as the alleged advantages, of a composition intended to reflect every group with an interest in the rules.  The downside of such bodies is that everybody wants to be heard, whether they have anything to say or not.  It would be good sometimes, on such committees, to hear someone say “I know sod all about this subject, so I’ll keep my trap shut”, but it never seems to happen.

The actual drafting lies with the civil servants in the Ministry of Justice, some of whom – how shall we put this? – are better than others. One suspects that for many of them the allure of the 17.50 to Esher outweighs the needs of court users.

Litigation solicitors, trying to give strategic advice to clients whose cases will be affected by the rule changes, really do not care who is to blame.  It is known that the policy intent behind the rules includes more stringent enforcement of them, and it places an intolerable burden on judges, as well as on court users, that the final form of the rules has yet to appear. The whole purpose of the changes is to reduce costs, but this delay, and the compliance scramble which will ensue, is bound to cost someone – the client or the lawyers (but not the civil servants of course) – significant sums of money.

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