Disputes lawyers across the market have broadly welcomed the Jackson Reforms, which come into force today, saying they will ease the burden created by disclosure.
The reforms will focus on curbing the budget and resources taken up by litigation proceedings in court. Although they are aimed at personal injury litigation, some commercial litigation will also be affected. Court budgeting and limits on disclosure proceedings will be affected as will fee agreements.
Disclosure reforms will mean that parties must file a new document, a disclosure report, detailing which documents exist or may exist and where they are located and stored. The report will also estimate the cost of disclosure.
Allen & Overy partner Joanna Page said of disclosure reforms: “There is already a lot of flexibility built into the system. There’s a suite of different things you can do and it does take upfront analysis to work out what is best so actually I’m not against the reforms on disclosure. I think properly applied they’ll be helpful.”
Underwood Solicitors chairman Kerry Underwood, meanwhile, said that while he does not expect sweeping changes as a result of the reforms he fully supports them nonetheless.
“I’m all in favour of it,” he said. “I think that disclosure is getting ridiculously out of hand – we face getting similar to America, where you have factories doing nothing but [disclosure].
“I’d very much welcome tough, robust court management of these matters, but in fairness to the judges, if you introduce substantial reforms to begin with you’re going to require more resources.”
For Eversheds partner Ian Gascoigne the onus now will be on lawyers to show that they have assessed which disclosure option best suits the issues involved.
“Judges will look at the approach the parties intend to take to disclosure and the predicted costs carefully,” he said. “The judiciary are intent on driving down the cost of giving disclosure, and that’s a good thing.”
Court budgets reforms will now specify what costs an unsuccessful party will have to pay before the case begins, although there is concern that this could lead to more work and perhaps to further litigation on budgetary matters.
“The expectation is we’ll have to live with budgets as setting the benchmark for recoverable costs,” said Gascoigne. “The problems will come on applications to vary what was originally approved as a claim unfolds. I’m expecting a degree of judicial scepticism to these. But I doubt appeals against budget decisions will be a productive step. The key lies in effective advocacy at the case management hearing.”
For Underwood, it would make sense for the courts to give guidance on what they would expect certain aspects of litigation to cost.
“Ironically, because bigger claims aren’t automatically covered you may have a situation where the courts are going to be wary of cutting hard the fees in lower value cases,” he explained. “A lot of smaller firms are in economic difficulties; to appear to say, ‘if you’re doing commercial work at the top end you can charge what you like, subject to assessment at the end’ while making high street firms spend an enormous amount of time and resources preparing a budget doesn’t chime with the times of austerity.”
Despite the broad support for the reforms Hogan Lovells partner Nick Atkins does not believe they go far enough.
“Unfortunately the way in which the reforms arrived on the statute books has been highly unsatisfactory,” he said. “Not only were the new rules and practice directions introduced at the very last minute, in piecemeal fashion, with virtually no warning or consultation, but more alarmingly, it was obvious immediately that many contained mistakes, lacunae and ambiguities.
“The Ministry of Justice was alerted to these but its response has essentially been silence. Similarly the Government ignored widespread pleas from the legal profession to delay implementation until the problems were fixed. The result is that an imperfect set of reforms has come into being. Satellite litigation will almost certainly ensue while the judges try to make sense of them.”