The Court of Appeal will issue guidance through procedural cases outlining how Lord Justice Jackson’s litigation funding reforms are to be implemented, Lord Dyson has said in his first speech as Master of the Rolls.
Dyson MR was appointed in August and took up the role on 1 October, succeeding Lord Neuberger, who has been appointed Supreme Court president (29 August 2012). He used his first speech as MR to demonstrate his support for the Jackson reforms, which, he said, would be implemented by April 2013 despite concerns that there could be delays.
“I’ve heard some whispers that it may not be possible to complete the implementation process by April,” he told the Civil Justice Section Conference. “Let there be no doubt about it, the reforms will come into force next April.”
He added that in order to mitigate the risk of satellite litigation “the new rules will need […] to be drafted so as to ensure that they can provide as much certainty as possible”.
Agreeing with his predecessor in endorsing Jackson LJ’s recommnedations, Dyson MR explained that a small number of appellate judges would be designated to deal with procedural cases in which they would deliver guidance on how the courts should deal with the reforms.
He explained: “I’ll also sit on those appeals, as will the deputy head of civil justice. I must, therefore, be circumspect in what I say about the detail of the reforms. We will not sit on all the appeals, nor will we form the entire constitution which hears those appeals. But at least one of the designated judges will sit on each procedural appeal.”
Further guidance will come through judicial training and practice notes from the Law Society.
As well as providing an insight into how the courts should approach the reforms, it will also give greater clarity on how it should deal with costs.
“It’ll be of particular importance in these areas because, to a very large degree, if the reforms are to be fully effective, and costs are to become proportionate, costs management will need to be carried out effectively and consistently in all cases,” he said.
Litigators are split on whether the additional requirements for costs transparency that are to be introduced next April will have an impact on rates. The reforms mean that from April all court users will be under an obligation to give a detailed assessment of their predicted fees in advance of the full trial hearing (24 September 2012).
“This is not a massive change – allocation questionnaires have always asked for cost estimates, often in some detail,” Eversheds litigation chief Ian Gray told The Lawyer earlier this week. “Summary assessments of costs and detailed assessments of costs have looked carefully at what rate and amount is being charged for the lawyers for what work.”
Norton Rose group head of litigation and dispute resolution Deirdre Walker agreed: “Firms are already required to provide details of their costs and estimates through to trial. These changes are therefore unlikely to have a significant impact on pricing or the reduction of costs. This latest initiative will, however, impose further discipline on parties and enable the judge to better monitor costs on an ongoing basis,” she said (15 October 2012).
However, the judiciary is clear in its belief that such reforms will have a deflationary effect on rates.
Dyson MR said: “If the reforms work as they are intended to, then we should be able to obtain evidence of costs reducing over time.”
He continued that the progress of the reforms will need to be reviewed and, if found wanting, there should be further reforms.
He said: “It seems to me that if we’re to thrive and survive as a society committed to the rule of law, we’ll have to strive to ensure that the Jackson reforms work. Where practice shows they cannot work, or where a changed legal environment means we have to find new solutions to new and unexpected problems, we’ll equally have to strive to develop answers to those problems and ensure that they work.
“If we do this, then I think we can ensure that litigators will survive and thrive.”