The Master of the Rolls, Sir Anthony Clarke, has appointed Lord Justice Jackson to head a committee to review the costs of civil litigation.
The appointment apparently follows a meeting between Sir Anthony Clarke and Bridget Prentice, Parliamentary Under Secretary of State at the Ministry of Justice. Bridget Prentice’s specific responsibilities include access to justice (or, rather, Access to Justice, the capitals presumably denoting a Government “initiative” rather than merely a statement of the right of every citizen).
There is as yet nothing on the Ministry of Justice web site about this, but a Legal Week report says that the review will begin in January and report in December 2009. Lord Justice Jackson will be assisted by a small team of assessors drawn from the judiciary, the legal profession and, interestingly, an economist.
Attention generally focuses on the very big cases. The Commercial Court Long Trials Recommendations which are now in hand were in part a response to the outcry over the BCCI and Equitable Life cases which threatened to drive litigation business right away from London – there is serious invisible export money involved here, as well as the right of citizens and businesses to a fair and affordable forum in which to resolve their disputes. Only last week, there was a report in the Times with the heading Fraud trial could drive cases from London about a commercial dispute estimated to cost £90 million which included the suggestion that companies might seek out less expensive jurisdictions to fight in.
It is less than ten years since the last major overhaul of civil procedure. The Civil Procedure Rules of 1999 introduced a higher level of pre-trial activity and court control, not all of it seen as beneficial. Not all opponents express views as extreme as those of Anthony Boswood QC (reported in Reforming Case Management) to the effect that every procedural change in his time had increased costs. Proponents of the opposite view cannot ignore the perfectly reasonable argument that pre-trial work often increases up-front costs and that those costs are not recovered, in many cases, by later savings.
The express driver behind the Woolf reforms which led to the CPR was the perceived benefit (as Woolf saw it) to encourage the parties towards settlement at an early stage. If they have that had effect, many would say, it is not because of any beneficent wisdom from rules or courts but because the system has become too damned expensive to fight in. That is not access to justice (nor even Access to Justice). It is a world in which only the very rich can afford to use the courts, with the rest either swallowing their grievances or resorting to self-help remedies.
It is easy to find whipping-boys. A soft target, and one which appeals to a Labour government, and particularly one to whom fate has handed a positive invitation to regulate, is lawyers’ charging rates. They are for the market to determine. A government which has made the civil courts a cash cow (the civil courts now make a profit which is not ploughed back in improvements) could make a start by reducing the court fees or investing in systems and staff to improve the administrative aspects of litigation. We could do with some accurate statistics derived from the costs jurisdiction – the numbers extracted from information lodged as bills of costs could give us some hard facts as to which stages are expensive, to replace the largely anecdotal evidence which is all we have now.
Before we start tampering with the rules again, we might have a go at making proper use of the rules which exist already. The Commercial Court Recommendations began with a lament to the effect that neither judges nor practitioners are making proper use of the rules for the management of cases. A common complaint (alongside the generalised criticism of the burdens of the present pre-trial regime) is that judges do not have the time at Case Management Conferences to understand enough about the case to make proportionate directions. The problem with such complaints is that they are necessarily partial and anecdotal. The committee which was bold enough to make the assertion as to non-compliance with the rules might be asked to particularise the assertion – it is not that it is not credible, just that it lacks any detail sufficient to identify where the problem lies.
We do not need such particularisation to identify disclosure as an overwhelming cause of expense – it was so identified by Woolf, and that was before the data explosion took off. I do not find many practitioners who know about the strict management regime laid down in the Practice Direction to Part 31 CPR. If they do not know about it, then judges are not making use of their powers to decide the scope of disclosure (specifically referred to in the Recommendations) or to enquire into the costs of one approach rather than another. How then are they assessing proportionality, a judgement which is critical to the volume and composition of disclosure? A judge who has not flexed his muscles at that stage is in no position to complain if the costs of disclosure appear, retrospectively, to be higher than the case warranted. Such intervention is a duty, not a right.
Technology has made enormous advances on the problems which technology created. Applications exist with the power, if properly used, to cut down the volumes and point to the documents which matter and pin them to the issues. How is a judge to know about these things? His practice, usually as a barrister, is unlikely to have equipped him with the knowledge. The subject appears on no judicial syllabus. The technology advances at a rate which it is hard to keep up with even for those of us who are immersed in it. Sure, the primary duty falls on the solicitors to equip themselves with the knowledge, or if they do not have the knowledge, the outside expertise – a factor which, incidentally, the draft Australian Practice Note recites in terms. But it is for the judge not merely to challenge what he is told but to identify what he has not been told. How can he do that without some training?
The clients are not just the innocent victims of the system here. More than half of all UK companies have taken no steps to adopt a document retention policy, still less a litigation readiness policy. Many of those who bleat about the costs of litigation begin it by having no idea what their data sources are, nor any means of flagging documents which have certain characteristics (such as potential privilege or privacy implications) and no supervised policy for disposing of the junk. It is not exclusively the lawyers’ fault (still less that of the civil justice system as a whole) if immense resources have to be devoted to sorting wheat from chaff, at law firm rates, in a hurry and under pressure. How much of the expense which is lumped together and criticised as pre-trial compliance is in fact a replacement for some informed house-keeping which the client might have done for itself, in its own time and with its own resources? My question is not just rhetorical – we really need some facts on all this before we charge in and suggest that the rules need changing.
Sir Rupert Jackson is just the man for this wide-ranging enquiry, and the fact that an economist is to join the assessors is an indication that some of these metrics might get a look in. We can also expect that the inquiry will range beyond the Commercial Court and the other high-end specialist courts such as the TCC, which Sir Rupert once headed. Litigants whose quarrels belong there are almost bound to be the ones with deep pockets – they may complain about the fees but they can afford them and, up to a point, can expect the court to listen. As one judge said of a recent case:
“It is the wish of the parties that this court should, in effect, value every piece of steelwork in Wembley Stadium and every item of damages from the Scott Schedule. I cheerfully undertake this task, because that is the parties’ wish and because the parties are entitled to the decision of this court upon the matters in issue.”
My direct source for this quotation is the construction law column by the barrister Tony Bingham. The judge? It was Mr Justice Jackson, as he then was, in the long-running Multiplex v Cleveland Bridge case. It was that case which he likened to the Lernaean Hydra – every time he cut off one head of the dispute by a decision, two popped up to replace it.
Lord Justice Jackson, as he has now become, will find the subject of his investigation similarly equipped with multiple heads.
The usual nature of Government-inspired inquiries is such that they are seen as a way of kicking into the long grass a subject which is too difficult, too embarrassing or too politically difficult to deal with. In this case, for once, the Government is not the villain, apart from its broken promises as to the funding of court modernisation. The administrative difficulties derived from this are very much part of the sclerosis which makes the system expensive to grapple with.
They are not, however, the sole or even the main issue. That lies in great measure with the courts, the lawyers who appear in them and the clients who instruct the lawyers. It is quite possible that suggestions will emerge as to changes in the rules. There will, no doubt, be consideration of different ways of litigation funding, of costs capping (on which an MoJ consultation has just ended) and on costs-shifting. The biggest single cause of expense, however, is the handling of documents for disclosure. The present rules, in the hands of an adroit lawyer and supported by an informed judge, allow the “supple” and “surgical” handling of disclosure which the Commercial Court Recommendations enjoin and which is equally applicable in other courts. It needs the use of some technology. As much as anything, in the longer term, it needs corporate clients to wake up to the fact that the conversion of their document management sow’s ear into the silk purse of surgical disclosure needs pre-emptive action on their part.