New Law Journal | James Baxter
It’s hard to believe that it’s been less than two years since the controversial Jackson reforms turned the dispute resolution market on its head. The continuing tussle between litigators and judges over the control of proceedings has already created enough drama to last many lawyers a lifetime. And still the search for clarity continues. The findings of the first NLJ/LSLA painted a grim picture of how many of the key Jackson reforms were impacting upon the profession. To the extent that some of the dissatisfaction felt among respondents was due to initial teething problems was reflected in a less hostile survey response in our second report in spring 2014. This reduction in hostility has continued into the third survey with a significant shift in views on the effect of the reforms on access to justice. Notably, however, litigators predict that litigation costs will continue to be driven up by the new budgeting regime, and report a continuing move away from undertaking contingency work—a knock-on effect of the removal of the recoverability of success fees.
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Welcome relief
According to Sophia Purkis, partner at Fladgate, the Court of Appeal’s emphasis in Denton on the obligation of parties to co operate in the interests of justice and saving costs was a welcome relief. “The warning given to opportunists seeking a windfall should hopefully put an end to the technical but unreasonable applications to strike out claims. The court also sought to warn against slipping back into pre-reform days and litigants should not relax too much. It is in everyone’s interests for parties to litigation to co-operate. The introduction of the 28-day buffer rule was pretty much a no-brainer,” she adds. Mr Justice Flaux, the judge in charge of the Commercial Court, issued guidelines in October reminding court users of the 28-day rule adding that, where a longer extension is sought, the parties should consider inviting the judge to make a Consent Order on paper. Many in the market hope that this will pave the way to a return to more reasonable and fair litigation, while parties will be in no doubt that court deadlines cannot be ignored without consequences. It is indeed overwhelmingly accepted by our survey respondents that litigation is in a better place since Denton and that the court should deter opportunistic and aggressive challenges to minor breaches of procedure. Graham Huntley, partner at Signature Litigation, says: “Mitchell was a painful episode for all concerned but it probably sent the necessary shockwave through the system to ensure that the correct approach following Denton is taken forward.” Yet, in some quarters, the original “zero tolerance” approach of Mitchell was considered easier to explain to clients and certainly acted as a wake-up call to practitioners. According to Guy Harvey, partner at Shepherd & Wedderburn: “It is harder for us to wield a big stick over our clients to get them to take steps in time if they know that the courts will excuse minor delays and breaches. There will doubtless be fewer procedural challenges in the future, but I will be surprised if this chapter is closed.” But there can be little doubt that attention has been re-focused on whether a breach of the rules is serious or significant. It is only if that hurdle is overcome that the court will turn to consider whether there was good reason for the breach and, after that, the factors in rule 3.9, including prior breaches. This should help to temper the danger of an overly harsh application of the rules in this area following the decision in Mitchell, giving greater clarity to what is required of litigants and the approach of the court when faced with a failure to respect the rules. At the same time enough discretion is retained for the court to impose suitable punishments on parties which fail to meet the required standards in material respects.
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Impact of the Jackson reforms upon access to justice
“I do not think there is any real Jackson effect on access to justice in terms of complex commercial litigation. Insofar as Jackson has assisted the funding environment to support some parties in commercial disputes, then to that extent one can say that there has been an added impetus to the access to justice issue.” Graham Huntley, partner, Signature Litigation
“As litigators become more aware of the costs consequences of the Jackson reforms and how they are working they are able to give clients more accurate advice about the likely costs and timing of claims. The costs have increased and the time it takes for a case to reach final hearing has lengthened.” Francesca Kaye, partner, Russell Cooke
“Overall, and despite the welcome changes introduced recently, the post Jackson regime does still appear to be reducing access to justice for costs reasons. Increased control by and management from the court by necessity incurs additional costs and can inspire a lack of co-operation or opportunism from litigants.” Sophia Purkis, partner, Fladgate