WHAT THE JACKSON REPORT SAID 3: CASE MANAGEMENT AND EXTENSIONS OF TIME
Both Jackson reports considered that case management was closely allied with costs management. Here I want to look at two aspects – the need for a realistic timetable and agreements to extend time.
DIRECTIONS MUST BE REALISTIC
At 6.5 of the Final Report it was made clear that a central element of cost effective case management was that timetabled should be realistic.
“There is a wide spread of views about this issue, amongst both practitioners and distinguished academic commentators. The conclusions to which I have come are as follows. First, the courts should set realistic timetables for cases and not impossibly tough timetables in order to give an impression of firmness. Secondly, courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting upon the civil justice system. The balance therefore needs to be redressed. However, I do not advocate the extreme course which was canvassed as one possibility in PR paragraph 43.4.21 or any approach of that nature.” (emphasis added).
IMPOSSIBLY TOUGH TIMETABLES GIVE A FALSE IMPRESSION OF FIRMNESS AND DO NOT FURTHER THE JACKSON OBJECTIVES
There have been numerous reports of courts ignoring timetables proposed by the parties and giving much tighter timetables. Ironically this course goes against the very principles emphasised in the report. The court should set realistic timetables and expect the parties to comply with them. Case management is not about a false impression of firmness but setting a realistic timetable.
Paragraph 6.5 may be worth citing in some cases. Stressing that the aim is to achieve a realistic timetable.
PREVENT THE PARTIES AGREEING TO EXTEND TIME/VARY THE TIMETABLE WAS NEVER PART OF THE JACKSON PROGRAMME
I can see nothing in any of the Jackson Reports which indicates that the court had any problem with the parties varying the timetable, provided the key dates, particularly the date of trial, was met. (These are very large reports and I may have missed this). However I am fortified in my view by Jackson L.J’s own response to the Civil Justice Council at 3.10:
“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” (emphasis added).
EXTENSIONS OF TIME: A KEY PROBLEM WHICH REMAINS UNRESOLVED
There is a certain irony in the fact that an issue which was “no part” of the Jackson recommendations has become a central problem in post-Jackson litigation. Even now, a year after implementation, there is no clear guidance on what parties can do and should do. At the moment the rules far from encouraging co-operation and the smooth progression of litigation, appear to prevent this and increase costs and the need for numerous applications. Not to mention the number of applications to strike out/dismiss there have been based on historic agreements to extend time.