Opinion: Reform is good, but take it easy

Judges seem to be taking the Jackson reforms seriously and getting tough on the causes of inefficiency

For the civil justice reforms to achieve their aim of producing a more streamlined, fair and cost-effective system it goes without saying that the judiciary must be on board. 

It is fine having new rules that emphasise the importance of complying with timescales and focusing litigation on the issues in dispute, but these will be ineffective if they are not embraced, enforced or even, dare we say it, properly understood by judges at all levels.

In the run-up to the implementation of the reforms the legal press made headlines out of the paucity of judicial training. Was it enough? Would the system change or continue as always? Well, the early signs are that a firm judicial grasp is being taken.

Three reliable sources on the application of the reforms and the approach of the judges to them are available – anecdotal evidence from attendance at court by our fee-earners, comments in judgments (especially in the High Court and Court of Appeal (CoA)) and information  from speeches by judges.

Our anecdotal evidence suggests a no-nonsense approach is being taken by judges sitting in the lower courts. We have seen an entire high-value personal injury claim, in which liability was admitted, struck out at the hearing of an application to vacate the trial (which had been agreed between the parties) after the represented claimant failed to serve documents in support of the special damages claim. Another claim was struck out because the trial bundle was filed a day late. 

We have also observed zero tolerance to cost-budgeting: in one case, 30 per cent of a claimant’s costs budget was peremptorily slashed from the figures that had been claimed. Warnings that there would be limited relief from sanction for non-compliance are, it seems, becoming a reality.

In Manchester His Honour Judge Pelling QC handed down a judgment on 9 May in which he warned that “all parties and the wider litigation world should be aware that all courts at all levels are now required to take a very much stricter view of the failure by parties to comply with directions.” 

Mrs Justice Swift reportedly spoke at a Manchester Law Society conference about a “real determination” on the part of judges to “embrace their new, more proactive role”. The CoA has established a panel of five regular judges (including, perhaps somewhat controversially, LJ Jackson himself) to hear all appeals arising out of civil justice reform to ensure decisions are 
consistent.

It seems judges are adopting the spirit of the reforms, but whether this is simply representative of a first blush of enthusiasm remains to be seen. We have also yet to learn of the more novel approach litigators will inevitably develop to counteract the effect of the reforms. 

Likewise, sounding a slight note of caution, care should be taken to ensure there is not too much reformative zeal at this stage – too much, too soon could result in a backlash, which is the last thing that any of us want. 

A firm but fair approach is the one most likely to endure.