Costs Management Panel at the Legal Week Commercial Litigation Forum

A parallel emerges between the management of Britain’s railways and the way the civil justice system is run. In both of them, the occasional star project cannot hide the fact that the rest is run-down, neglected by government and inadequate both for its users, for its role in the economy and for the fulfilment of fundamental duties of the state.

St Pancras StationI made it to only the last session of the Legal Week Commercial Litigation Forum, held at St Pancras Renaissance Hotel last week. St Pancras itself is a triumphant example of a building whose modernisation has repurposed both the hotel and the station for the 21st century whilst keeping the grandeur and style of its high Victorian origins. The Eurostar trains leave here for Lille, Paris, Brussels and points south, a gleaming, modern and highly efficient transport system looking wholly at ease in the refurbished red brick Gothic of the 1868 station.

Although you seem to appreciate, or at least to tolerate, my occasional geographical, historical or literary allusions, there are in fact parallels between St Pancras Station and the delivery of civil justice in England and Wales. St Pancras and Eurostar may gleam and work efficiently, but the rest of Britain’s rail system and stations are run down, overpriced, badly managed and wholly unsuited for the demands placed upon them. Successive governments have shown no interest in how the railways ought to work for the benefit of those who use them and for the economy generally, and have milked them for profit. If you can afford to travel first class, then you may be reasonably sure of a seat at least, but the only trains which seem regularly run to time are the international connections out of St Pancras. The focus on those who can pay, on the occasional star project, and on international business, does nothing to improve the tired infrastructure, the declining quality of service and the ever-higher prices.

I will not spell it out item by item, but the courts system looks much the same. We have the superb new Rolls Building aimed at attracting high-paying litigants, many from abroad; as St Pancras does with trains, the Rolls Building puts the very best of British justice into a modern and efficient context. Pretty well everything else about the civil justice system is run down, inadequate for those who need to use it, and a brake on the economy.  Access to justice is limited by extortionate court fees and by cuts to staff and facilities. As with the railways, one is being merely polite in describing the civil servants in the relevant departments as “indifferent”, that convenient word which describes both their quality and their attitude. The government sees it simply as a cost to be cut rather than an essential duty of the state. Any official Labour opposition would be hypocritical given Labour’s own attacks on both civil and criminal justice, apparently run more as a kind of class war against lawyers than as anything to do with citizens’ rights. The Lib Dems are strangely mute on the subject, giving rise to the assumption that they have traded support for access to justice for the right to squawk from some other dunghill.

One could extend the railway parallel further, no doubt, but it inevitably breaks down after a while. I will risk one further analogy and observe that the judges who are responsible for case management equate to the drivers, signalman and station controllers whose job it is to deliver as good a service as they can in the circumstances, getting each case to its destination according to the timetable, and without derailment. Some do this better than others.

Squeezing the last drop out of my analogy, picture the passengers as being unprepared for their journey, with far too much luggage, the wrong ticket and vagueness about their destination, yet still willing to whine about delays and costs. The passengers equate to court users, to clients with too many documents and lawyers with an inadequate grasp of the rules and of their clients’ objectives, yet happy to blame the court and the system. Judges are faced not only with an inadequate infrastructure but with a complaining client base apparently unwilling to help itself arrive at Trial Central or Settlement Junction.

The Panel Session

The Chairman of the Commercial Litigation Forum was His Honour Judge Simon Brown QC, a Specialist Mercantile Judge at the Birmingham Civil Justice Centre. Judge Brown is well-known as an advocate of active case management, not least because mercantile judges generally manage their own cases and have that interest in their efficient disposal. Judge Brown’s judgment in Earles v Barclays Bank is well-known in eDiscovery and costs circles, and he has also been heavily involved in the costs management trial launched over a year ago in Birmingham by Lord Justice Jackson.

The closing panel was called The Future of Costs Reform. It was led by Judge Brown, and the panellists brought a range of skills and viewpoints to the subject. Professor Dominic Regan is a member of the Civil Justice Council Costs Committee and has been charged by Lord Justice Jackson with the task of monitoring the costs management pilot; Elizabeth Harris of Allocatur Consulting is well-known beyond her native Australia for thoughtful and trenchant views on the containment of costs. Andrew Dismore is Coordinator of the Access to Justice Group which is harrying the government over its proposed implementation of Lord Justice Jackson’s reforms and tits attacks on Legal Aid. These, incidentally, as Lord Justice Jackson noted in a recent speech, are two separate subjects which tend to be lumped together as if he were responsible for both; he in fact argued in his report that “the maintenance of legal aid at no less than the present levels make some economic sense and is in the public interest”.

The Costs Management Pilot

The point of the costs management pilot is not difficult to explain.  In appropriate cases, the parties estimate what they are intending to spend under specific headings. They may be challenged on this, perhaps because the proposed spend under a particular heading seems excessive or, equally, because they appear to have underestimated what is involved. The estimates may be varied for good cause as the case progresses. The exercise serves not only as a sanity check but also as a control by which to measure the party’s claims for costs at the end.

Points from the Panel

As with many panel discussions, it is best reported by picking out key points rather than by attempting to construct a narrative out of it.

Liz Harris made some interesting points which picked up on Judge Brown’s reminder that other jurisdictions compete with us for contentious business, many of whom are doing the job more efficiently than we are. Liz Harris said that there was competition within Australia between the State Supreme Courts and the Federal Courts, with data available to show how quickly cases can be docketed and progressed. The key, she said, was increased judicial involvement together with active participation by court users and those who stand behind them.

The “cards on the table” attitude was required, and parties must disclose what they intended to rely on. Discovery is by categories, and the onus falls on the party who seeks to broaden disclosure – they must show reasonable likelihood that there is something useful to be found.

A number of Australian judges are clear that witness statements are a waste of time and money.

Whilst there was no provision in Australia for budgets to be produced in advance, there were extremely strong duties to disclose costs to clients – where they have not done this, lawyers cannot sue for their fees without an application to the court.

Dominic Regan said that users had indicated initial terror at the thought of having to make up-front costs calculations, but that the feed-back was positive. It seems likely that the long-term plan is that all multitrack cases will be costs-managed.

Judge Brown said that much of it is common sense – the budgets sometimes showed a clear mismatch between the proposed costs of a particular head of spending and the value likely to be achieved by it.

The panel agreed on the importance of enforcing compliance with orders. A case should be seen as a project with timelines and budgets like a construction project.

The apparent inability of the Ministry of Justice to manage its resources was raised from the floor. Andrew Dismore said that government departments were “lambs to the slaughter” when it came to negotiations with outside providers.

Judge Brown told of a Singapore judge visiting the UK who had demonstrated how she managed her cases remotely. His own court had plenty of faxes and copiers but only one scanner. E-Filing was the norm in Australia and Singapore, speeding up the courts’ part in reducing costs and cutting time between stages. We are moving backwards in this respect, with a new barrier inserted into the system by the requirement that everything is sent to Salford.

It is clear from the summary points that this was a wide-ranging panel squeezed into a short slot. A two-day conference would, for example, have allowed more discussion on the costs implications of the Jackson reforms. For those of us whose primary focus is the joint duty of judge and parties to deal with a case as the overriding objective and as the case management rules require, this panel picked out many of the key points.

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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 Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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