The litigation costs management trial on which I reported a few days ago (Jackson launches costs management trial in Birmingham) has been covered by the Birmingham Post.

Their article of 3 June is headed City will be test case for costs rules and includes a photograph of Lord Justice Jackson, three of the judges from the Birmingham Civil Justice Centre who will be running the trial, and Martino Giaquinto of Mills & Reeve who hosted the event at which the trial was launched.

It is no accident that the e-Disclosure Information Project was also launched in Birmingham. The modern, forward-thinking civil courts are representative of a thriving commercial and professional centre which seems to have a more cohesive feel to its business community than many other places.

There is more to this than merely being the guinea-pig for costs experiments. The bids made by regional firms in the late 1980s and early 1990s to compete with London firms seemed after a while to reach a plateau, in litigation as in other things. Work above a certain size still goes to London because of a perception that only the major London firms can handle them, particularly those involving large volumes of documents.

That perception becomes self-perpetuating – the litigation support software and services providers devote relatively little of their marketing resources outside London and conference organisers do not reckon to be able to raise audiences in the provinces. Clients get the message that document-heavy work can only be handled well in the capital, so regional firms undertake no pre-emptive training or education to gear up to handle such work. And so the circle goes on.

There is no obvious reason why this should be so. It does not matter where you are to make use of online document repositories; the skills can be delegated if they are not available in house, and any firm who ran a couple of cases with such outside help ought thereafter to be able to take more of the work in house.

Such things are best promoted, so far as I am concerned, by outlining the benefits. Technology is a leveller which enables smaller, more nimble firms to take on larger ones who historically rely on their larger headcounts. That is a luxury which few firms can indulge in now.

If the carrot of competition with larger firms does not provide encouragement to provincial firms then the stick might. There are four kinds of work you might miss out on – that which goes to local rivals, that which goes down to London, that which the clients keep in house themselves, and that which does not happen at all because the clients cannot justify the cost – and the risk – of engaging in litigation.

The main point of Lord Justice Jackson’s trial is not merely the containment of costs but the provision of certainty as to the downside risk. That, as my earlier article explains, is not the risk of losing (which will turn on the facts and issues) but the risk that the adverse costs consequences of losing are greater than the business can bear.

For the moment, the initiative on this lies with Birmingham. It is, as Lord Justice Jackson made clear, a voluntary submission to the court’s management powers. That being so, it can be tried in any case where the parties and their lawyers are willing to approach the costs issue with the necessary degree of rigour.

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