In a rare speech last week, Lord Justice Jackson cited supportive comments from practitioners as he laid out a spirited defence of his civil justice reforms.
Speaking at a lecture in London yesterday, Jackson LJ joined Lord Dyson, Master of the Rolls, to discuss the progress of costs management. He predicted that costs management will be accepted as an entirely normal discipline within ten years “and people will wonder what the fuss was all about”.
“The introduction of the new regime came as an unwelcome shock for many in the profession. Nevertheless a number of practitioners tell me that their initial fears have not been borne out,” he said before citing positive comments from a Bristol costs judge that the new regime protects “real” people, as opposed to insurers, from being “destroyed by costs when they lose”. A Leeds barrister, a small firm in Newcastle, and the Treasury Solicitor’s office also made positive comments.
To those who complain disproportionate front loading of cases is required, Jackson LJ said litigants needed clarity on costs and the process would improve as solicitors became more familiar it. On the criticism that some litigation is too complex for costs management, he said the rules provided for this scenario and judges could order staged budgets. On the argument that most cases settle so there is no point in budgeting, he countered that settlement still involves costs and budgets “promote a realistic settlement”.
He argued that it was right that lawyers focus on the costs element from day one rather than focusing on the “nuances of damages”. More judicial training was the solution to complaints about judicial inconsistency, long hearings and micro-management by judges.
He acknowledged that there were problems, including delays in listing and costs management conferences, particularly in clinical negligence in London where the waiting time is nine months. He proposed a one-off autumn suspension for London clinical negligence cases to clear the backlog.
Writing for NLJ, columnist Professor Dominic Regan says: “Many judges felt they received inadequate training. One wrote and asked if he could have my notes as he had received nothing. There is widespread deep-rooted resentment about this task which has added another layer of work to the task of case management.” He offers a detailed analysis of the issues and suggests that potential solutions might be to increase the threshold at which budgeting applies, for example, to £250,000, and to simplify the budgeting process.
