LORD JACKSON'S RESPONSE TO THE CIVIL JUSTICE COUNCIL

Mediatelegal

The Civil Justice Council review of the Jackson reforms received 70 papers in total.  The only ones generally available, to the best of my knowledge, are the ones available on this blog  and the paper provided by Lord Jackson which is available on the CJC website 

Points of particular interest in Lord Jackson’s response:

SANCTIONS AND PROCEDURE

“3.8 Tougher enforcement of rules, practice directions and orders.  Rule 3.9 has been amended to give effect to recommendation (v) above.  At the same time the overriding objective in Part 1 of the CPR has been amended by the addition to rule 1.1 (2) of a new sub-paragraph (f): “enforcing compliance with rules, practice directions and orders”.  Lord Dyson MR provided a valuable commentary on these rules in the eighteenth implementation lecture.

3.9 In Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537[1] the Court of Appeal emphasised that these rule changes herald a genuine change of culture.  Nevertheless parties should not be allowed to exploit trivial or insignificant breaches by their opponents, as Leggatt J stated in Summit Navigation Ltd v Generali Romania Asigurare [2014] EWHC 398 (Comm).

3.10 Agreeing extensions of time.  Parties should be able to agree sensible variations of time limits which do not disrupt the litigation timetable.  It is no part of my recommendations that parties should be prevented from doing this.  Parties should be enabled, indeed encouraged, to co-operate in progressing litigation smoothly and at proportionate cost.  I understand that the Rule Committee is actively looking at this.”

THE TENSION IN IDENTIFYING “TRIVIAL” OR “INSIGNIFICANT” BREACHES

Lord Jackson identifies, but does not (indeed cannot) resolve the tension between the Mitchell and Summit decisions. Many cases lie somewhere between.
AGREEING EXTENSIONS OF TIME

The latter point is reiterated later in the response.

“10.11 Agreeing reasonable extensions of time.  Many practitioners have said to me and many respondents have stated in their submissions that it should be possible for parties to agree reasonable extensions of time which do not disrupt the litigation timetable.  I agree, as stated in para 3.10 above.”

PREDICTION ON COSTS BUDGETING

“10.16 Prediction.  Nobody would embark upon building works or any other business project without a budget, albeit subject to appropriate future revision.  No-one suggests that quantity surveyors or bills of quantities are unnecessary merely because they lead to “front loading” of costs.  Whether you are an individual caught up in a boundary dispute or a global corporation defending its patents, litigation is usually a major business project.  I predict that in future years people will look back on the “old” regime of uncontrolled litigation costs as absurd.”