LEEDS LAW SOCIETY MEET THE JUDGES EVENT: JACKSON ONE YEAR (AND A FEW MONTHS) ON
Yesterday evening Leeds Law Society held a “meet the judges” evening when practitioners met local judges and court staff to discuss issues arising out of the implementation of the Jackson reforms. Some of the issues were specific to Leeds but most are of more general application.
These are not verbatim notes. (Next time I will see if I can record the session). I have missed some of the important references to the Game of Thrones and Mitchell analogies (for which omission I may never be forgiven). However the central points are here.
Questions had been submitted in advance by the audience.
- His Honour Judge Gosnell (Leeds DCJ).
- District Judge Jordan,
- District Judge Troy
- Dianne Jackson-Penney, Leeds County Court
- Mark Sims, Operations Manager of Leeds Combined Court
- Paul Kirtley, Exchange Chambers
- Sue Harris, Leeds Law Society.
General Overview from the Judges
There had been initial problems with Part 8 , specialist claims over 2.5m and Precedent H file (date of filing).
The Mitchell decision was a game changer. Following Mitchell there have been a number of important decisions supporting the robust case management decision. The consequences have been an increased need for applications for extension of time. There has been a sharp increase in the number of opposed applications for an extension of time and relief from sanctions.
In relation to QOCS and the effects this has had on costs, the general attitude seems to be that there is no real incentive for a defendant to get a real costs budget prepared, this is because the defendant is unlikely to recover it. Claimants are inflating their costs budgets to counter any likely reduction. People are still feeling their way and adopting defensive position in relation to costs budgeting.
The courts have seen an increase in applications to extend time for service of witness statements due to fear. It is hoped that the recent rule change (CPR 3.8) will help as parties can now agree to an extension.
As the law stands it is understandable for parties to take technical points, they have sometimes achieved a great tactical advantage. However, there is a difference between this and exploiting the rules to take advantage. The latter must be avoided to avoid undermining professional relationships. Judges want to encourage the ‘what goes around comes around’ principle. If you allow opponents flexibility, you will receive it when the shoe is on the other foot.
In this respect the courts are looking to lay down parameters of what constitutes fair play.
The Panel then responded to questions submitted in advance:
1. From a practitioner point of view how do people feel the framework impacts on market so far – are firms becoming more inventive in their funding arrangements?
There had been a downturn in cases, following a peak in April last year. The reason for the peak was obvious.
2.Have you noticed less cases being issued and how has it affected those where LIPs are involved?
The PSU has assisted 3757 LIPS over last year (42% of those were family matters with the rest being made up of housing issues and money claims).
3. Costs budgeting and the definition of proportionality – Do the Judiciary anticipate more guidance on what this means?
The Judiciary have given no further definition than that given in CPR r44.35. This is intentional. The courts have no intention to give any further definition.
In relation to the initial CCMC, the judges indicated that they require very good reason to depart from the rules and deal with case management and costs budgeting separately. If you feel there is a reason why this should be so the correct course of action is to make an application.
4. Costs draftsmen speaking at CCMC?
There is generally no issue with costs draftsmen attending the CCMC to explain the costs budget as long as only one person is speaking at a time.
The courts are seeing an increase in counsel and costs draftsmen attending court to explain costs budgets. In the Judges’ view the solicitor should be doing this as the solicitor is best prepared in terms of the facts.
5. What proportion of Costs Budgets are being agreed?
There are not enough costs budgets being agreed by the parties despite court encouragement to try and reach agreement. The courts are urging parties to consider their respective budgets with a “spirit of cooperation” in mind. In cases where there is a real standoff, it is possible/preferable to agree a phase or phases, if the whole budget cannot be agreed.
The panel commented that in a recent case in which both parties had filed their costs budgets late, the parties had agreed their costs budgets to avoid being “Mitchelled”.
6. Are there any planned amendments to allow pre-action costs to be considered at CCMC?
7. Contingencies and prospective applications.
There has been a concerning increase in size of Precedent H forms as a result of growing numbers of contingencies and assumptions being provided for. This is to be discouraged.
If it is a contingent cost (e.g. experts reports and/or attendance) then the most appropriate course of action is to make an application and it will be dealt with then.
8. Are there any multi-track cases which are not suitable for Costs Budgeting?
Costs budgeting is not appropriate in very large infant approval cases where there are difficulties in obtaining a future prognosis. It can also be inappropriate in cases involving complex liability issues.
9. Time taken to list applications.
There is an increasing reluctance to agree Costs Budgets – if more are agreed cases can be listed quicker.
10. Could judges adopt a more flexible approach to the documents to be filed at a CCMC.
The panel stated that they are looking at coming up with “CCMC lite” bundle requirements over the next few days. These will be less onerous than at present and reduce the need for summaries. They are also considering whether there should be a specific order to consider agreeing budgets.
It is envisaged that this will apply to smaller multi-track cases up to £100,000. There will also be a new requirement to file a composite costs summary in a format which is self calculating so can it be amended during the hearing.
11. Use of technology
Leeds CC currently has 19 email addresses. They are reviewing their use of technology with a view to reducing them. This review should be complete by the end of July so expect changes after that.
With regards to e-filing, Leeds CC can currently accept emails up to 3MB (around 30 pages). The hope is that this will increase soon. The fax capacity is also up to 3MB (around 30 pages).
12. Delay in courts – how is this affecting customers and public perception considering the cost of court fees?
Leeds CC is currently listing general applications for the 1st July. More substantive hearing are being listed from 22nd July. The current waiting time for orders is 14 days but they are hoping to reduce this and streamline their listing procedures.
13. Dealing with problems in advance
The advice from the Judiciary is to do your work in advance. Unforeseen things happen so are expected to plan for this. If some unforeseen circumstances arise writing a letter to the court will not suffice. You must make the appropriate application to the court with the appropriate fee.
14. Disputes as to allocation Where one party thinks the case should be allocated to multi track and the other says fast track the costs thrown away will be paid by the party losing the point on allocation.
15. Perception of bias if a judge has refused a strike out/summary judgment application and is likely to hear the substantive action This is unlikely. If a party feels that there is likely to be a perception of bias, the time for raising is at the pre trial hearings.
COURT WORKLOAD AND URGENT WORK
Leeds CC is experiencing an increase to their workload of around 5%. If your correspondence is urgent you must mark it as URGENT.
They are currently working on a “duty judge” system with one judge dealing with two lists per week of urgent applications.
At the moment DJs at Leeds CC are reduced to 6.6 (one works part-time for another court and is not, as someone asked, a very small judge!). They have put in bids for 3 more and hope that these will be in post by October.
The impact of Jackson
Effect of the withdrawal of the recoverability of success fees and ATE insurance premiums
Question for the practitioners (to the floor): How do people feel the new framework impacted on the legal market so far, i.e. the irrecoverability of success fees and ATE insurance premiums? Are there less cases proceeding generally or are firms becoming more inventive in their funding arrangements (giving examples)?
Question for the judges and the Court Service: Have you noticed less cases being issued and/or more litigants in person? Are there any statistics available for Leeds and/or England and Wales to compare the three years pre Jackson and the year post 01.04.13 in terms of number of cases being issued and those where LiPs are involved?
Question to the floor – show of hands: Has anyone used damages-based agreements? If so are they willing to share their experiences about the drafting of the same/client response to them and the outcome/result?
The use of Mitchell for tactical advantage
Question to the floor – show of hands: Are practitioners noticing Mitchell been used as a means to gain a tactical advantage in proceedings?
Question for the judges: Do you consider tactical use of Mitchell furthers the overriding objective and promotes access to justice? Will the court look unfavourably on parties actively seeking to cause their opponents to fall foul of Mitchell? What penalties are likely to be imposed?
Question for the judges: What stance does Leeds County Court take on unreasonable attempts to take tactical advantage of Mitchell, for example the faxing of witness evidence by a party, followed immediately a fax indicating that the party does not accept service by fax or e-mail?
Question for the judges: Has a fear of sanctions resulted in parties seeking more approval from the court in Leeds? If so, could it be said that the Jackson reforms and now the decision in Mitchell have in fact made litigation (in general terms) more inefficient? If so in what ways?
Question for the judges: As regards “proportionality”, in the context of cost budgeting, does the judiciary anticipate that there will be more guidance given to the judges and the practitioners about what this might mean? If so when is this likely to happen or will it be left to a decision of the Court of Appeal in a suitable case?
Question for the judges: Can anything be done to ensure that the inconsistency in approach to the requirement for cost budgets in pre 01.04.13 cases is rectified?
Question for the judges: There is an inconsistent approach to cases where it might not be appropriate for an early costs budget (for example one matter where one District Judge ordered that a CCMC be listed, and the District Judge before whom it was listed decided that (as it was issued pre-01.04.13 costs budgeting did not apply) resulting in significant costs being incurred by the parties in preparing for an aspect of the hearing which did not go ahead). From a practitioner’s point of view it would be useful if there could be more guidance about which cases might be suitable for an initial CMC with the costs budgets being adjourned (in advance) to a later date. Could this be considered at a local level and applied by all the judges in Leeds?
Question for the judges: with regard to the attendance of cost draftsmen at CCMCs are they allowed to speak in the costs part of the hearing (even though the solicitor is conducting the case management part)? Other courts are allowing cost advocates but the experience in Leeds is varied.
Question for the judges: What proportion of costs budgets are being agreed either in all respects or all but a few items?
Question for the judges: Are there any planned amendments to the CPR that will mean that the pre action costs can be considered by the judges at a cost budget hearing? If so what form is that likely to take and what level of detail will be required from the parties?
Question for the judges: The guidance notes for Precedent H say that Part 18s should be included in issue/statements of case. However, if you have not done a Part 18 at the time of the cost budget (very likely) and you do not know that you will definitely have to do a Part 18 in the future (but experience tells you it is likely) should an estimate go in the issue/statement of case estimated or as a contingency (or only as a contingency if you think that there might have to be an enforcement hearing or do you say in the assumptions that you assume there will not be hearing)? Also is it correct that amendments to pleadings are definitely meant to go in contingency section, on the basis that there has to be an application, whether there is consent or not (but what if you have already done amendments at the time of the cost budget – presumably that has to go in statements of case)?
Question for the judges: What is the position regarding applications that could be considered to be “strategic” e.g. security for costs? Is it acceptable to leave them out on the basis that the costs of those hearings can be dealt with in isolation and outwith the cost budget in any event?
Question for the judges: Are there any Multi Track cases which the Court feels might not be appropriate for Costs Budgeting?
Question for the judges: The time taken by the Court to list applications and CMCs has increased significantly over the past year. This may be down to the fact that the time required for CMCs has trebled in most cases. Many Defendants are reluctant to agree costs budgets in advance of the CMC, in some cases serving lengthy objections to the budget as if in preparation for Detailed Assessment. We believe this serves only to use up more of the Court’s time unnecessarily and significantly increase the costs. If costs budgets could be agreed between the parties in more cases, this would make a significant difference. Are there any steps the court could take to encourage such agreement e.g. within pre CMC directions?
The Pre CCMC Order being used in Leeds
Question for the judges: could a more flexible use of the order be considered e.g. ensuring that the order is adjusted to reflect the modest value of some cases and the amount of work that might be needed to comply with the full order?
Use of technology
Question for the Court Service: Please can information be circulated to the practitioners about the email addresses that the court has, to make it clear to the practitioners which address should be used for which enquiry/filing and when the email addresses are checked during the day.
Questions for the judges: Part 36 offers, validity period for acceptance. If there is a dispute between the parties on costs and the matter goes to a provisional assessment and the judge decides on a figure that the Defendant must pay, can the Defendant accept an earlier lower part 36 offer made by the Claimant during the negotiation stage? If the part 36 offer was not withdrawn in writing, is it still valid for acceptance in these circumstances? Is the provisional assessment deemed to be the commencement of the final hearing?
Question for the Court Service: What are the methods of filing documents with Leeds County Court for a forthcoming hearing? What rules apply re length of documents or attachments that may be filed by e mail or fax? How does this differ from other parts of the national County Court?
Question for the Court Service: If overwork of the staff at court means you get 19 working days behind, what do you envisage the consequences might be, in the post Jackson and Mitchell world ,from the point of view of the Court’s customers, both legal and lay, and on the public perception of the system of justice, given the current level of Court fees?
Question for the judges: Do you agree that if a party is going to be e.g. 24 hours late in complying with an order for unforeseen reasons (attempted suicide of a witnesses wife the day before exchange; example that happened a couple of weeks ago) can the party concerned simply write to the court or is a formal application with court fee of £155 always required? Will the court treat such a letter as “an application for the purposes of a prospective application to extend time?”
Question for the Court Service: It is understood that shorter faxes and emails can be sent to the court. Generally we have been working to a 10 page maximum. Is this going to be extended for Precedent H documents bearing in mind these are generally longer than 10 pages?
Question for the judges: The claim value places an action in the multi track and the notice says it appears to be suitable for multi track. However, the issues are relatively straightforward and the volume of evidence is small. Is it in order to file a DQ and include a proposed direction (having been unable to agree directions) for allocation to the fast track, but NOT to file a Precedent H costs budget, on the basis that if the Court agrees it will make an Order dispensing with the need for Precedent H or is it compulsory to lodge this Form even if the case is then allocated to fast track?
Question for the judges: As regards the County Court and allocation of fast track trials to judges, who may have dealt with interlocutory applications in that case, how in such circumstances can one have a Trial date listed before a new Judge to avoid any perceived bias?