Challenges to meet and not just threats in the Jackson reforms

A senior clinical negligence barrister suggests that we think positively about the Jackson reforms.

Shortly after the UK Bribery Act passed into law, I took part in a London panel about its implications. At the Q&A session at the end, a solicitor launched into a diatribe about the Act which I interrupted rather roughly. The time for consultation had passed, I said, and the Act had passed into law; there was no point in whining about it or suggesting that things might have been done differently; the object of the panel and its Q&A session was to focus on how to deal with it.

An article by clinical negligence barrister Nigel Poole QC makes similar points about the Jackson reforms and, indeed, draws attention to potential benefits from the changes. His article is headed Singapore Spring – Clinical Negligence Litigation after 1 April 2013, but it has interest beyond that specific area of practice. The Singapore reference is to Lord Justice Jackson’s enthusiasm for the case management regime in that jurisdiction. There had been much grumbling, Jackson said, when the new rules started to bite, but lawyers had come not merely to accept them but to find more work as litigation became more efficient and affordable. Nigel Poole summarises this with the sentence “if the courts give lawyers and experts the hurry up, that might just be good for clients.”

That is something which I have said consistently about the Jackson case management rules. I also strongly believe that litigation should not be exempt from the normal commercial principles which clients apply to every other activity in which they engage, particularly as to the likely costs. Nigel Poole puts it thus:

Why shouldn’t the parties know in advance, broadly what the costs of each phase of the litigation are going to be? I would want a detailed estimate of costs before agreeing to building works at my house. I would think it an odd system for the builder to charge me what he wanted at the end of the project and then to have a lengthy court battle about what a reasonable charge should be. And costs are more likely to be paid, in full, shortly after the conclusion of a case: claimants’ lawyers should have improved cashflow.

It is reasonable for the courts and for the state to want to keep some level of control over the costs of litigation and to ensure that they are proportionate. Costs have risen. Lawyers should not be heard to complain if access to justice can be maintained and justice delivered at lower cost. Who can argue against a requirement that a costs budget should be proportionate? Would they prefer the courts to allow disproportionate costs? 

There are indeed threats to many solicitors in the new regime; we have seen expressions like “sweaty palms” and “blood on the carpet” from judges. We are where we are, however, and if some solicitors are not able to get  their minds round anticipating likely expenditure – something which is an inevitable component of any proportionality calculation – then others will.

Those “others” will not just be firms of solicitors:  rivals range from the Big 4 consulting firms and other consulting businesses to barristers (yes – barristers) and to the clients themselves. The ability to pre-estimate costs goes to more than the formal estimates and budgets required by the rules – if you become good at estimating costs based on past metrics and third-party quotations then you put yourself in a position to agree fixed or capped fees with the client.

No-one is saying that estimating costs is easy – “give me a fixed spec and I will give you a fixed price” as Terry Harrison of Hobs Legal Docs said at a conference last year. What is required by Jackson is in fact just that – arriving cooperatively, and with judicial approval, at a fixed specification which defines what work and cost is proportionate to the objective.

Remember that builder parallel when someone asks you to estimate costs.


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 CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Jackson Reforms, Litigation. Bookmark the permalink.

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