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After the appointment of Jackson LJ to hear appeals spinning out of his reforms litigators warn that bigger battles are on the horizon
The haphazard way in which Lord Justice Jackson’s reform program has been implemented has created confusion and anger across the profession.
This week the Master of the Rolls (MR) Lord Dyson convened a special Court of Appeal judicial bench to hear appeals relating to the Jackson reforms.
With many suggesting that the haphazard way in which the reform program was implemented will spark a litigation frenzy it is clear that nobody wants this to end up like the Woolf reforms (8 June 2009). Lord Dyson MR has in fact turned to the architect of the reform programme itself, Jackson LJ, and invited him to hear the appeals.
Litigators say that in effect the judiciary is looking to create its own case law in an area left untouched by the Ministry of Justice, which is currently gutting what is left of the legal aid budget.
Some suggest that in appointing Jackson LJ, who will sit alongside Lord Dyson MR, the deputy head of civil justice Lord Justice Richards, and Lord Justices Davis and Lewison, the bench has shot itself in the foot.
Many litigants appearing before the judge will simply believe him to be incapable of non-bias towards his own reforms. Will claimant lawyers look to recuse the judge from cases?
Underwoods chairman Kerry Underwood comments for many when he says: “This appointment gives the impression, erroneous I’m sure, that the Court of Appeal’s mind is made up and that appealing is pointless if it involves explicit or implicit criticism of the reforms.
“It’s such an obvious own goal, inevitably forcing the Supreme Court to give leave to any matter to be appealed to it. Normally the leapfrog procedure involves going straight from the first tier to the Court of Appeal. We may as well just have a double leapfrog to the Supreme Court.”
In avoiding the long arm of the reform programme the commercial court has simply been left to get on with business. Cases valued above £2m in the chancery division too have avoided the case management pilot – although some in the judiciary claim it will be applied in theory if not on paper.
The exemption for both courts was made to avoid “inappropriate forum shopping” between different courts, given the concurrent jurisdictions between the Admiralty and Commercial Courts, the Chancery Division, the TCC and the Mercantile Courts.
The aim was to keep the workload light and attracted the big money international disputes, which boost London’s standing in the litigation world.
Yet in those cases affected by the Jackson reforms the mess could be about to get even bigger. Many are bemoaning a two-tier system between civil and criminal cases, but in the civil world the experience of a wealthy litigant in London and those on a shoe string budget is has been left gaping.