Something for everyone in the Jackson litigation costs report

Lord Justice Jackson’s interim report on civil litigation costs weighed in at 650 pages, not the 1,000 pages which rumour anticipated. It is as well that I am commentator not a newshound journalist, because I missed the big day and was on-air myself at a rather more nuts-and-bolts level (giving a live e-Disclosure broadcast) as Sir Rupert Jackson was being interviewed by the BBC on the more momentous subject-matter of his report.

That there was something for everyone in the report is evidenced by the range of things which others picked up on in reporting the launch. LegalWeek headed its report Jackson to review complex commercial disputes and picked up on Sir Rupert’s expressed determination to cover complex multi-party disputes as well as cases in lower courts. It quoted him as saying “I have come to the conclusion that the Commercial Court is not a sacred territory, which falls outside the terms of reference set for me by the Master of the Rolls……The recommendations in my final report must encompass all civil courts, including the Commercial Court.”

The Law Society Gazette’s article was headed Jackson costs review backs CFAs, alternative dispute resolution and gave prominence to conditional fee arrangements or some other system of payment by result to facilitate access to justice. They drew attention also to what was said in the report about the shift of civil justice costs to the litigant (“wrong in principle”) and the benefits of taming the personal injury litigation “industry”.

The headline in Times Online was the neutral Lord Justice Jackson raises concern about rising legal costs which topped a three-page report with references to success fees, fee-sharing middlemen and court fees.

Court fees and the personal injury middlemen were the subject of the interview with Lord Justice Jackson which I heard on the car radio. That part of the industry, he said is ‘populated by numerous interest groups and middlemen, all of whom have to meet their overheads and make a profit on top. If any layer of activity can be removed from the process… it may be thought that this will serve the public interest’.

Almost at that moment, by chance, I got an e-mail from one of these legal bottom-feeders asking what it would cost to put a link to their web site “anywhere on the right-hand side menu” of my blog. I am more than a little picky about whose logo appears there, and though I can see the attraction for them of appearing alongside the best names in the litigation support industry, I am not sure what is in it for me or for the cause I promote. I dare say that the timing was coincidental but it did look rather as if they were looking for a respectable cloak for their less-than-respectable business just as Lord Justice Jackson peered under their stone. Make me an offer, chaps. The figure nearest to the size of my mortgage gets the top slot.

What of electronic disclosure? It is the first subject mentioned in Part 8 of the Report, with 33 pages given to e-disclosure specifically and disclosure generally. I will not be drawn into instant comment – it warrants a degree of attention which is required for more pressing aspects of e-disclosure this week-end, like the several e-disclosure conferences which are imminent.  I will not have been Sir Rupert’s only source for my own pet topics but he refers amongst other things to the way the Practice Direction to Part 31 CPR is routinely ignored, to the working party of which I am a member which is drafting the pending e-Disclosure Questionnaire (due to come into effect in October, he says), to the question “what search is good enough”, to lack of liaison between parties, and to Digicel (St Lucia) v Cable & Wireless (from which he quotes at length).

Sir Rupert refers, more than once, to the need for judicial education. He also includes amongst the range of possible recommendations one that we have a new breed of e-disclosure assessors.  These last two were the top two things on the wish-list which I gave to the Jackson review team – my “what matters to me” points (see The untapped potential of YouTube as a promotional medium if this reference is obscure). I will certainly not have been the only one to bring up the need of helping judges with the subject, and no-one will argue with that suggestion.  I have found resistance to the idea of having e-disclosure assessors, and my article on it remains an entry on my To Do list. The fact that others raised it and its appearance as a serious option in Lord Justice Jackson’s interim report will encourage me to take the subject further.

It was suggested to me when this review was first announced that I had over-estimated its scope and that it would deal only in broad issues like funding. This interim report suggests otherwise. I have not begun to look yet at the sections on evidence and on case management, but if they have been surveyed as comprehensively as disclosure has been, then we can expect recommendations which are detailed as well as broad ones.

Although, as I said in my earlier article, this is a judge-led initiative, the Master of the Rolls reminded us on Friday that it will be for Parliament to make any significant changes to the way litigation is funded or managed. The final  report is due in December. The Labour government will have only five months left (222,420 minutes from 1 January for those planning celebration parties) and ministers will have other things on their minds such as how to fill their days after 3 June. Access to justice in the widest sense is big enough to be a manifesto issue after twelve years in which our rights have been continuously eroded. The minutiae of rule-making is unlikely (I hope) to occupy too much manifesto space, but the level of court fees – that most tangible barrier to those who seek to exercise their basic right to a hearing – and the resources applied to the administration of civil justice could well be battle-grounds.

There is much to chew on in Lord Justice Jackson’s interim report. Sir Rupert invites consultation between now and 31 July (see Chapter 63 in Part 12 for details), and has regional seminars organised in Cardiff, Birmingham, Manchester and London during June and July.

He is also speaking at the Ark Group E-Disclosure 2009 conference  on 8 June at which I am giving the keynote presentation. My title is The Empty Bear Garden which I had adopted before Lawrence West QC wrote an article in the Times on 9 April called Have the Woolf Reforms worked? which included this:

“Before the CPR, the corridor outside Court 12 in the Royal Courts of Justice, the Bear Garden and the Master’s Corridor heaved with lawyers and their clients waiting hearings. Those places have been wastelands ever since.”

For West, as for me, the Bear Garden – a junction of several corridors at the RCJ in London – is a symbol of the decline of litigation. Twenty five years or so ago, rising young barrister Mr Rupert Jackson was amongst those to whom I used to send instructions for litigation in those corridors. We did a trial together of a kind you rarely see today – two commercial parties whose mutual dislike could only find expression by exercising their right to fight it out in court. They could not afford it now.

It is the duty of the state to provide an efficient forum and framework for such legitimate disputes. Lord Justice Jackson’s interim report suggests that the state will be given a comprehensive blueprint for the restoration of this basic right.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Access to Justice, Case Management, Civil justice, Court Rules, Courts, CPR, eDisclosure, eDisclosure Conferences, eDiscovery, Electronic disclosure, Litigation, Litigation costs, Litigation Support, Lord Justice Jackson. Bookmark the permalink.

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