Judges are about to get much tougher as costs are ranked alongside justice in the new CPR
I was sat at the back of court recently while a well-known district judge heard a couple of applications before mine. In both, the parties wanted more experts. Neither was hotly opposed, yet in each case the judge ordered a single joint expert, no matter that the claimant in the second case complained that she already had her own expert.
In a pause while the advocates scribbled down his directions the judge asked: “Do you feel a draught?” Cue puzzled looks in court before the judge declared: “It’s the wind of change”. After some laughter, slightly sycophantic, from the advocates, the judge went on to explain: “It’s a Jackson draught.”
It is easy to spot the headline changes in the civil procedure rules (CPR): costs budgeting, doubling the small claims limit, personal injury (PI) portal expansion and provisional assessment of costs to name but a few. And we’ve heard all the new acronyms: DBAs, QOCS, DQs… But it is important not to miss the more subtle amendments that reflect a change of culture. Judges are going to get tougher. Much tougher.
The big idea is proportionality. When considering costs the judge must ask whether they are proportionate and if they are not, must reduce them, even if they were reasonably and necessarily incurred. It is conceivable that a party may say to the judge “I need this expert report to prove my case” only to be met with the reply, “I agree, but since the report costs £5,000 and your claim is only worth £20,000 I will not allow it.”
Even the over-riding objective has been changed. The rules are now there to enable the court “to deal with cases justly and at proportionate cost”. Proportionality is on the same level as justice.
The court may expect you to justify why you should call all your witnesses – the powers of the court to control evidence are bolstered. You will have to explain if you think the new model case management directions are inappropriate in your case. In a non-PI multi-track case you will have to justify why you should have disclosure beyond the documents on which your opponents rely plus any specific disclosure you can identify.
And woe betide you if you miss a deadline. Conversely, make a quick application if the other side does. The relief from sanctions regime is replaced by rule 3.9. No more working through a checklist that includes whether there was a good reason for the default. Lack of prejudice is no longer expressly relevant.
While the court will take into account the circumstances the judge’s mind will be focused by the new rule on two things: (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to comply with rules, practice directions and orders.
It should be evident that this is no mere tidying up exercise. If you do not comply with the CPR or a court order, expect sanctions and do not expect relief.
The message is clear: first instance judges are expected to get tough. And with the senior judiciary supporting the Jackson reforms, do not hope to bring a successful appeal.