Get used to it

There has been much grumbling since the Ministry of Justice unveiled plans to reform the civil litigation funding regime, but that has not stopped progress being made towards their implementation.

Lord Justice Jackson
Lord Justice Jackson

Earlier this week Lord Justice Jackson, whose year-long inquiry into litigation costs formed the basis of the reforms, was once again busy explaining why the judiciary  will be taking a more robust approach to case management conferences.

“The goal of the present round of reforms is to enable both practitioners and the courts to deliver the best possible service to civil litigants at the lowest possible cost,” the judge said.

With Justice Minister Ken Clarke hoping to make London the number one destination for international litigants
(14 September 2011) it is essential that the courts are best in practice on the global stage.

As the Bar Council chair Michael Todd QC told the IBA conference in Dubai earlier this month: “The consistent message I hear from business leaders is that when they conduct litigation, mediation or arbitration, their core requirements are quality, cost-effectiveness and speed. We consistently strive to meet those requirements, but there’s more that can be done.”

Consequently, when the cost reforms are finally implemented in the spring there will be some significant changes to the civil procedure rules (CPR). It is intended that these new rules will give the judiciary the tools they need to take control of case management without being seen to be meddling.

Jackson LJ reeled of the prerequisites for decent case management at a proportionate cost at the Judicial Institute earlier this week, stating: “First, the judge must have the requisite expertise and do the necessary pre-reading. Secondly, the practitioners on both sides must have the requisite expertise and be properly prepared. Thirdly, so far as possible, the same judge must deal with the case at successive hearings. Fourthly, there must be a consistent approach to case management by all courts, rather than local practices which vary from one court centre to another.

“Finally, robust but reasonably fair case management orders should be upheld by the Court of Appeal, even if the lord justices – perhaps casting their minds back to county court practice in the 1970s – might have preferred a different order.”

Under  the new rules courts will be encouraged to take a firmer approach to case management and judges will be encouraged to monitor compliance with the directions.

Jackson LJ explained: “Overseas experience suggests that a phone call or email from the court to the parties enquiring about progress can have a dramatic effect. Obviously securing compliance with case management directions is far preferable to punishing non-compliance.”

The MoJ has agreed to a change of emphasis in the CPR to ensure that judges are ’less tolerant’ of rule breaking. There will be judicial training to support “a tougher and more pro-active approach”, the judge said.

Litigators seeking to make late amendments to pleadings will be frowned upon as the practice is perceived to help drive up costs.

The changes will be effected under the provisions in Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Bill, which is expected to receive royal assent next year.

This is a very practical approach to helping litigants save money, but will no doubt result in some judicial tellings off. The judges have to get used to a new way of working and lawyers will just have to suck it up.