Dominic Regan takes a wry look at Jackson LJ’s costs terminology
The publication of the two-volume interim report by Lord Justice Jackson provoked the usual ill-informed mutterings…but enough of the judiciary. There are some tremendous proposals for procedural reform which I suggest are certain to be implemented.
Hot-tubbing
Hot-tubbing: crazy name, brilliant concept. This involves calling experts of like discipline simultaneously rather than consecutively. They are there together in the tub, or rather the witness box. The ability to hear what the experts have to say in rapid succession upon a given point will surely assist in resolving points of dispute. Imagine how exciting litigation would become if the concept was extended to calling the parties simultaneously? The vision of Sir Paul and Lady McCartney giving evidence at the same time is exquisite.
Docketing
Another eminently sensible idea about which the Jackson team was unanimous was docketing. This means that a case would be assigned to a given judge who would look after the action for as long as it continued. Familiarity with the action would save time and costs. It should be pointed out that the true architects of the modern civil structure were the official referees who, long before becoming technology and construction judges, were assigned cases to look after. It was they who brought about the exchange of witness statements and meetings of experts and service of Scott schedules (Scott was an official referee).
The decision of the Court of Appeal in Carver v BAA (2008) 3 All ER 911 has caused tremendous uncertainty and Jackson records the concerns of practitioners that it has harsh consequences. Carver decided that the question of success for Pt 36 purposes was no longer just about money. An open-textured approach was needed and this meant taking into account other factors such as delay and anxiety. Miss Carver recovered £51 more than the defendants had offered to settle but was categorised as the loser and so had to pay costs starting 21 days after the inadequate offer. It was not worthwhile for her to have ploughed on for such a measly sum. It is easy to state the test but how is one to apply it? You will look in vain at the judgment for that answer. If she had bettered the offer by, say, £251 would that have been worth it? Certainty is crucial for lawyers and clients. The old simplistic approach has much to commend it.
His suggestion that Pt 36 be extended to the detailed assessment of costs would indeed provide greater certainty than the current provision which says any offer may be taken into account. This too would only be workable if Carver were to be abandoned.
But beware
Great care must be taken whenever any proposed reform is backed up by judicial figures. On page 45 Jackson quotes Sir Henry Brooke who wrote a recent report saying that District Registry statistics were not worth the paper they were written on. Sir Rupert backs this up by stating that official figures for trials in the Technology and Construction Court were wrong by “several hundred percent”. Invariably, those who pursue reform reinforce their arguments with statistics. Beware.
Protocols were introduced with the express purpose of avoiding litigation. Jackson at p 321 moots the possibility in construction and engineering disputes of having the pre-action process take place after proceedings are issued! The consequences of this seemingly bizarre approach would be that costs incurred in complying with the protocol would become part of the costs of the action and the judge could be called upon to control the protocol process if need be and resolve issues that might arise such as what documents ought properly be disclosed.
What should happen if an innocent client is represented by a bone-idle lawyer who fails to comply with court orders? Non-compliance might no longer be tolerated so that the defaulting side would be struck out and would be left to sue their own lawyer for negligence (page 432). This would produce some hard cases but might be for the benefit of litigation generally.
Many practitioners complain about the perceived impotence of the courts when dealing with serial defaulters. A new firm line would arguably help achieve one of the Woolf goals, the avoidance of delay and prompt resolution of disputes. There is no mention of the robust line adopted by the Court of Appeal in Marcan Shipping v Kefalas [2007] 3 All ER 365 where a defendant that had failed to comply with an order unless order was struck out and not granted relief, even though the trial was not imminent. The court stated that to grant forgiveness would convey the wrong message. Litigators would not take orders seriously if they thought that ,were they struck out this week, they could get back in next week. Unless orders mean what they say.
A final problem which Woolf identified but plainly did not overcome was flannel. Rambling witness statements, bundles containing peripheral material that will never be referred to and extreme disclosure continue to dog litigation. We have heard it all before but something really needs to be done to curb such excesses.
At the end of the year Sir Rupert will report. What, if anything, the then government chooses to do is quite another matter.
Dominic Regan is a solicitor, author & presenter. Thanks to RS for additional research. E-mail: dominic@dominicregan.co.uk
