An article by Rachel Rothwell in The Law Society Gazette shows that there are some judges who will be making good use of the case management powers given to them by Jackson, and reminds us that there are potential benefits as well as some fairly onerous duties ahead.
You may have observed that I have been less than complimentary about the introduction of the Civil Procedure (Amendments) Act 2013 which crawled onto the statute book a few days ago only to be amended immediately.
Having waited breathlessly for the definitive version and then rushed to produce a summary of it, I have now had to edit my post to reflect the changes, and have written an article, sarcastic even by my standards, about judicial reluctance to get involved in costs management.
Put succinctly, a judge who purports to impose proportionality without having some idea of the costs which are about to be incurred – it is the “about to be” bit which matters here – is looking at only half the story. Proportionality is like a seesaw in multiple dimensions – it has the objective (of clients as well as court) on one side and the costs on the other; it has quality and completeness on one side and costs on the other; it has risk (in the sense of oversight or omission) on one side and costs on the other. To abrogate responsibility for budgets seems to me to be a dereliction of duty.
We are where we are, however, and there are remaining cases which will require budgets, quite apart from judicial discretion and the reasonably clear idea that we are heading enentually towards budgets for most cases – perhaps even in the Commercial Court whose users, it is implied, are too rich to worry about such trivia. The budget requirement was the biggest single concern of many lawyers as well as judges, perhaps obscuring their view of the broader case management requirements, particularly those relating to disclosure.
An article in the The Law Society Gazette by Rachel Rothwell called Judges begin flexing their Jackson muscles draws attention to a note being sent to lawyers by a Manchester judge which emphasises the new climate of enforced compliance with rules, orders and practice directions. This has obvious downsides for those who do not comply, and provides incentive for lawyers at least to read the rules.
The other point made by the judge, and highlighted by Rachel Rothwell, is one of incentive. Lord Justice Jackson was much impressed by the experience in Singapore where strict case management was met first with discontent and then with acceptance not only that the reforms had benefits but that those benefits included an increase in litigation work.
More work is obviously only of value if it can be done profitably. The rule changes, with their focus on what really matters and on cooperative discussion about the best and most cost-effective way of achieving that, is something desired by clients as well as by the courts. Reductions in the volumes to be reviewed, which the rules positively encourage, will have much more significance in reducing costs than any amount of fiddling with the charging rates and the new rules, with their increased focus on proportionality and control, give opportunities for real (and defensible) decisions to reduce review volumes.
Lawyers who can not only achieve this but who understand that there are different, and differently priced, ways of skinning the rabbit will have work to win.