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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.
What have been the key sticking points or successes of Jackson in your opinion?
Costs budgeting has been a bit of a sticking point due to the inconsistency of the judges. Some deal with it and some don't. Some deal with it but don't have a clue what to do. You just don't know what you are going to get. We had one matter where the parties were ordered to file and serve costs together with additional information in relation to costs incurred pre-action and in respect of issues or statements of case costs. We spent a lot of money preparing the budget and associated documents. We turned up to the case management conferences (CMC) and the judge asked why we had prepared a costs budget and we explained we had been ordered to prepare one. The judge said that was an error and he wasn't dealing with costs budgeting. I estimate the costs of that entire process were around. 6,000 on both sides.
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Costs budgeting is good for clients if law firms do it properly, such as engaging with the client in the process. This way clients know what the litigation will cost them and can tailor it to their requirements (if they want a QC or want the Grade A to do all the work). Another sticking point is, since Mitchell, defendants are more awkward and are trying to pick up on any delay or issue they can. The ruling has caused satellite litigation. Objections to relief applications are common even where it is very clear that the breach is trivial. I think the ruling has created a barrier between parties with common sense going out of the window.
Are there any aspects of Jackson that you would like to see reviewed?
I would like to see changes in the following: o o o the CPR (in relation to relief)--maybe to a half-way house between what it is now and what it was before some guidance in the CPR with regards to proportionality--such as how judges should approach it the CPR time recording guidance improved and enhanced so costs lawyers know exactly where time fits into the defined costs budgeting phases--the precedent guidance is woeful to say the least the costs budgeting rules changed so clients have to sign the costs budget