Comfortable apathy for anyone? Some Jackson case management and costs management commentary

I am working on some material to add to the Resources section of my web site about the case management and costs management aspects of Jackson. There is, as you would expect, a great deal of comment flying around at the moment and I take this opportunity to point you to some of them.

LexisNexis has just published a sub-site devoted to the subject called LexisNexis on Jackson.  In addition to providing links to the main formal documents (as I did recently) it carries four videos designed to show what happens when you fail to prepare for or cooperate with the other side in relation to cost budgeting before the CMC.

The participants are HHJ Simon Brown QC, who did so much on the Birmingham costs pilot, and two solicitors who took part in the pilot, Mark Surguy of Eversheds and Martino Giaquinto of Mills & Reeve. This is an excellent and easily-assimilated way of understanding the implications of the new regime, and an extremely useful supplement to reading the rules themselves (don’t forget to do that).

An article published today in the Law Society Gazette is headed Judges “ill-prepared” for Jackson and presents a pessimistic view of what parties can expect given the paucity of the training given to case managing judges. I take a rather different view.

It is entirely right to say that case managing judges need far more training than they have had in two subjects – costs and electronic disclosure – from which they will have almost certainly have been insulated as barristers.  Three factors, however, weaken the rather generalised approach taken in the Gazette article: the first is that you cannot lump all the judges together as if they were of equal ability, experience and interest in case management; the second is that their careers as barristers (as most of them were) have turned on their ability to be eloquent today on something they knew nothing about yesterday; thirdly, a party’s success or otherwise at case management conferences will turn at least in part on the skill, knowledge and preparation of the advocates. Strictly, one should not need the impetus of new rules to go equipped to argue about the best way of managing cases and, in particular, electronic disclosure – that has long been an obligation of those appearing at CMCs.  Nothing in the new rules – not the new Rule 31.5, nor the express insertion of the words “at proportionate cost” into the overriding objective nor the emphasis on the duty of compliance fundamentally alters a duty of competence in this regard which has been expressed in the Rules since at least 1999.

The only things which are wholly new in this area are the removal of the test of “necessity” in determining what costs are payable by opponents, and the costs management regime itself. For those who have collapsed into comfortable apathy on learning of the exemptions, do remember two things – first that  the obligation to produce costs estimates for electronic disclosure  survived the late bid for exemptions and second that, however confused the launch of the CPR amendments was, we are told that costs management is likely to be ordered in more cases than not.

I have already referred in a previous post  to an article by Nigel Poole QC which encourages lawyers to take a positive view of the case management reforms. Michael Frisby, litigation partner at Steven & Bolton, has written an article for the Lawyer called Jackson: Costs and Benefits which opens with the assertion “Litigation costs regime will bring great rewards if lawyers approach it in the right way”.

Back in the days when I did a lot of hands-on consultancy and data work, I did a case with Michael Frisby and with Nigel Murray, now managing director of Huron Legal. We took on a Magic Circle firm and very quickly proved the proposition that firms like Stevens & Bolton can compete with much bigger firms if they use technology and external resources coupled with  their own skills and agility. As I recall it, Michael Frisby won an award that year in part for his handling of that case. Stevens & Bolton is precisely the kind of firm which stands to win in the changed environment for commercial litigation.

As I was going to press with this post, yet another article popped up, this time in the Solicitors Journal with the title Jackson reforms will ‘re-establish equality of arms’, Lord Dyson says. Pick out of that article just this:

The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases,” he said. “This requires an acknowledgement that the achievement of justice means something different now.

Parties can no longer expect indulgence if they fail to comply with their procedural obligations.

Now, anyone for some “comfortable apathy”?

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