LORD JACKSON'S RESPONSE TO THE CIVIL JUSTICE COUNCIL

9 Responses

1. 

   . · March 26, 2014 at 20:37:20 · →

   Would any private enterprise embarking on a building works or other business project be happy if a government put a process in place to interfere in how they set that budget?

   For that matter would a government interfere in such a business in that way? Would they for example tell an insurer how to set a premium, or put caps on them? Would the process be opaque, untested and rushed?

   I think the absurdity lies there.

2. 

   robertpettitt · March 26, 2014 at 22:59:55 · →

   Costs budgeting obviously has some uses, but we are realistically talking about cases that are worth millions, the budgets are in the hundreds of thousands and active case management will take place.

   However, my prediction is that people will look back at budgeting as being an absurd fad.

   I suspect the majority of cases that are affected by budgeting are cases where the claim is valued at 100k or less and the costs to trial will be estimated at a similar figure. The court cannot manage the case to reduce the costs because the directions will be agreed. The cases will go to costs management hearings because the defendant has everything to gain and the claimant has everything to lose and the stupid thing is that proportionality (as much I am pre-emptively disgusted by the new version) should more than adequately control costs without detailed assessment once people have a clue of how it will work.

   I can still not get my head around the logic of wasting court time with a guaranteed cost management hearing in every case that is allocated. If this is supposed to act as some sort of stop on provisional assessment it does not work because (1) the chance of a detailed assessment taking place over the spread of cases is slim anyway (2) the past costs are not capped in any way (3) there are signs that costs within the cap are still up for challenge (4) the costs budgeting cap on future costs only has any prospect of working if a trial takes place.

   As a side thought, I would hope that judges working in this post-Jackson post-Mitchell world would feel disgusted at the lack of justice. Lose your claim because you file the key witness statement an hour late. Significantly under settle your claim valued at £20k because you’ll never get to trial for less than 100k and even if you make an early solid Part 36 offer the defendant can accept it on the eve trial and you’ll still only get standard basis costs (i.e. proportionate costs).

   Whilst I’m not convinced that this is the case, I hope Kerry Underwood’s assertion that a government change will revert the rules is correct.

3. 

   Richard Harrison · March 27, 2014 at 10:14:13 · →

   1. Whoever got hold of the idea that litigation is akin to a construction project has regrettably inspired many zealots.

   2. If prospective budgeting is simply a way of identifying a “proportionate” (whatever that means) figure which the litigation is going to cost the unsuccessful party, the means of implantation, namely the ridiculous Precedent H, the draconian sanctions, the costs management conference fiascos, the requirement to consult the court and thus use its scare resources on every unexpected event, is quite simply a disproportionate sledgehammer to crack a nut. Go for fixed or percentage recoverable costs if that’s what you want.

   3. Yes, we will budget for the benefit of our own clients and already do so, but not necessarily in the inflexible form of Precedent H and not against the vindictively disciplinarian background that has been introduced.

   4. The budgeting tail is wagging the litigation dog.

   5. “Flouting” of court orders was not the cause of the problem of excessive costs. The hard-line provision introduced as Gordon Exall has identified were not necessarily in the original Jackson report and have greatly exacerbated the original problem they were meant to resolve. I have just had occasion to deal with the Tribunal Procedure (First-Tier Tribunal (Property Chamber) Rules 2013. Perfectly workable.

4. 

   @HampshireLawyer · March 27, 2014 at 12:50:28 · →

   You have promoted Jackson LJ to the Supreme Court!

   A prediction: In a few years’ time, we will be looking back at the period of the “Mitchell Madness” of 2013/4. It will be something we can tell, if not our grandchildren, then future pupils and trainee soicitors about. They won’t believe us, of course.

5. 

   @HampshireLawyer · March 27, 2014 at 12:54:38 · →

   The construction project analogy overlooks that in litigation, the parties are often trying to erect quite different edifices, in quite different ways.

   1. 

      Richard Harrison · March 27, 2014 at 16:28:29 · →

      And demolish the other one at the same time…

6. 

   Richard Harrison · March 27, 2014 at 13:08:50 · →

   Just seen a Freudian slip: for “scare” resources, read “scarce”. Or maybe not.

7. 

   Dominic Cooper · March 27, 2014 at 14:27:51 · →

   According to Jacko, “nobody in their right mind would spend £1,000 to recover £100”.

   Really? So, when I toddle off down my local high street at 43MPH and Mr Gatso takes my photograph, and I get a fixed penalty notice and victim surcharge or whatever, I owe the crown £70 or so.

   If I do not pay, do they simply write it off on the basis, “well it will cost more than that to recover, so it’s disproportionate”? No didn’t think so.

   Of course, as Kerry Underwood has pointed out, in a regime where some or all of the costs are recoverable, that is the wrong calculation.

   Let’s say the recoverable costs are £102 (which in fact they are for a £100 debt).

   The question is not “who would spend £150 to recover £100”.

   The question is “who would spend £150 (which is probably tax deductible and therefore only costs you £110), to recover £202 (debt plus recoverable costs)”.

   Lots wouldn’t, but some people would. If you are a local vet, and haven’t been paid £100, what do you do? Just write it off?

   FYI my practice issues a lot of “debt recovery” court claims. So far this year, the lowest claim was for £215.85. Last year, the lowest was for £194.18. The lowest ever was for £90 (although that was my wife, against House of Fraser who refused to refund a purchase when they sent the wrong parcel).

   So according to Jackson, none of these claims ought to have been brought as they are, by definition “disproportionate”.

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