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This article was first published on LexisPSL Dispute Resolution on 1 April 2014. Click here for a free 24h trial of LexisPSL.
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What has been your experience of the first year after the Jackson reforms?
Confusion There is no guidance as to what proportionate costs means because many judges are unclear on what basis they are supposed to review the parties' budgets. Many judges don't want to conduct budgeting at all. There is no consistency in judicial approach. Consternation The decision in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2013] All ER (D) 314 (Nov) is widely seen as imposing a disproportionate and penal sanction (depriving a party of the ability to recover its costs if it wins) because it was a little late in submitting its budget to the court. This has inevitably led to a cohort of other applications, as parties seek similar windfall benefits following some minor transgression by the other party, with huge uncertainty as to how the court will respond. Lawyers are even concerned as to whether they can reach the kind of sensible agreement regarding the conduct of the litigation they would have done in the past. Again, there is no consistency in judicial approach. Cost Preparing budgets for the court, discussing budgets with the other side, holding hearings relating to budgets and preparing disclosure statements all add to the cost of litigation.
How has Jackson affected your practice and the running of cases?
Addressing the underlying claim remains the main aspect of litigation, but court procedures have become more prominent and concerning. Preparing budgets and disclosure statements has increased the cost of the litigation. There is also a greater consciousness of the need to comply rigidly with deadlines or to apply for an extension before the deadline expires, again adding to the cost of litigation. Cooperation in litigation risks being replaced by confrontation. The regulations governing DBAs are such that they are in practice unusable even if lawyers were otherwise minded to enter into DBAs. The rules in their current form permit only no win, no fee DBAs, with lawyers taking the entire credit risk on the defendant. In commercial cases, that is too high a risk for most lawyers.
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If court budgeting remains, changes are needed in order to make it work sensibly on its own terms. At the moment, an underestimate of the cost of, say, preparing witness statements cannot be set off against an overestimate of the cost of disclosure. A change in approach to focus on the total costs may occur, rather than nit-picking over its constituent parts. A storm to come is what constitutes (dis)proportionate costs: o o o costs the same as the sums in dispute? costs half the sums in dispute? a graduated scale?
The courts will have to grapple with the principles of proportionality. They can't hide behind generalities. Proportionality cannot depend entirely upon the circumstances of an individual case or on the whims of the judge conducting costs management. Everyone seems to accept that the regulations governing DBAs are not fit for purpose. Changes must surely come. Interviewed by Rachel Moloney. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.