It is fitting that an article about confused messages should have to start with an explanation of its title. Only those who are old and British will know that pre-decimalisation currency consisted of pounds, shillings and pence, written as £. s. d. “Three and fourpence” was three shillings and four pence (written as 3/4) and was equivalent to about 17p in new money.
The (possibly apocryphal) story goes that a Great War front line commander sent a message back from the trenches “Send reinforcements, going to advance” which reached HQ as “Send three and fourpence, going to a dance”. It comes to mind as we watch the UK Ministry of Justice, and those responsible for the mechanics of rule-making, convert Sir Rupert Jackson’s crisp and urgent message about case management and costs control into a confused jumble. The front-line troops are the case managing judges and the lawyers who are trying to work out what they are supposed to be doing to comply with a regime whose implications, they know, include fierce enforcement provisions. At the time of writing, the enforcement provisions in Rule 3.9 have (just) been published, but the new eDisclosure rules have not. You can therefore, theoretically at least, be punished for non-compliance with rules which you cannot easily find.
The Jackson reforms have attracted a great deal of comment, much of it from people who know what they are talking about in their various specialist subjects; we have also heard a lot from people who are less knowledgeable, from some who conflate a range of changes (including those to Legal Aid) under the label “Jackson”, and from some whose position is like that of the early 20th Century judge who said “Reform! Don’t we have problems enough already?”.
Be clear that I support almost without qualification what Lord Justice Jackson intended in respect of my own small patch of case and costs management and specifically their effect on electronic disclosure. His aims, his motivation and, indeed, the actual wording of the proposed new rules, have been set out clearly for months, thanks to their incorporation into his series of speeches.
That is just as well, because we have yet to see the rules set out in their full form. They do, of course, appear in the amending legislation, but that is necessarily complicated by the need to track the removal or addition of every last word or comma, and are no substitute for a straight recital of the rules.
This, for example, is what the amending Act looks like for Part 3 covering the division of the old Part into Case and Costs Management (or “CostsManagement” as the published version sloppily has it):
..and here is the published version – not, I hope, the final one since the layout remains a mess:
Lawyers know of the introduction of costs management, and are probably aware both that there were exemptions from this regime and that the exemptions were extended and qualified after the passing of the original amending act – itself not published until right up against the implementation date. They may or may not have heard that, the exemptions notwithstanding, the general policy is apparently that costs management is to be considered for every case. They deserve to be able to go to a single formal source to see what rules apply where. As at today (but not yesterday) we have the new Rule 3, its large new section of Costs Management helpfully blocked in black so as to be almost illegible…
…and (as noted below) with its index hyperlinks a mess. If Practice Direction 3E is available, I can’t find it in its published version, and it is not referred to in the cross-links at the top of the section.
Then, of course, there is the (quite separate) report required by Rule 31.5(3) relating to documents which exist, their location, the “broad range of costs that could be involved” in respect of them and the duty to state “which of the directions under paragraphs (7) or (8) are to be sought”. Don’t waste valuable time looking for all this in the rules because, at the time of writing, the MoJ has not got that far in updating its website (you need to look at the amending legislation itself for that – it is here).
You do, of course, know that there is a standard form for this Rule 31.5(3) report, don’t you? No? Well, the first one should have been completed last Tuesday, that is, 14 days before a CMC hearing on 16 April. Its nature is that it requires some information-gathering – important, useful information to my eye, but not stuff which you can invent; lawyers deserve notice of it.
Don’t ask me where to find the form. I have seen one, but I have no idea where to look for a published version of it. It is rubbish anyway, apparently requiring the listing of individual documents, amongst other things. I am not sure who authorised it or who drafted it, but it will come as something of a shock, even to those lawyers who were aware of the new reporting obligation and, as I say, the Rule makes no reference to it.
I could go on – perhaps I will. Not only is the whole of the new Rule 31.5 (the “menu option” amongst other things) missing from the published version of the rules, but half the hyperlinks which serve as the index to Part 3 CPR take you back to the MoJ home page rather than to the relevant subsection. If you go to the (unamended) Part 31 and take the link to Practice Direction 31A, you are taken into a “pre–trash–archive” with “/_old/” as part of its url, a kind of parallel rules world from which you cannot escape because every hyperlink thereafter keeps you in the pre-trash archive.
You perhaps now see why I opened this post with a reference to misheard messages. Lord Justice Jackson’s intention was to bring transparency and predictability to litigation, and that (very positive) intention is indeed reflected in the rules. We have had an extremely good speech from the Master of the Rolls explaining the policy behind the new enforcement regime (I wrote about it here).
All this clarity has been lost in administrative confusion – of late publication, of hasty amendments and exemptions, and of botched web updates, the equivalent of the “send three and fourpence” quotation with which I began. Jackson said “Going to advance”. The MoJ has taken us on a dance. The new rules impose strict duties of compliance on lawyers and of enforcement on judges. Their launch should have been performed with the same rigour as the courts will henceforth expect from parties. We face the very real prospect of judges being obliged by the rules to punish parties for breach of obligations (such as completing the pro forma eDisclosure report) which they had no realistic way of discovering, quite apart from those which are merely difficult to find. Not every firm has a training team and seminars.
I repeat that I am a supporter of these rule changes. I believe that the discipline which they impose will be second nature to good litigation lawyers (and there are plenty of them) who already treat disclosure as a project to be anticipated, managed and priced, and salutary for those who have got away without this approach. I am entirely with the Master of the Rolls in what he says about the new approach to sanctions in Rule 3.9.
The rollout of the rules, however, has been deeply disappointing. They have lost the momentum which they deserve, and it is unfair on parties and judges alike that we should have got off to such a bad start. Properly published or not, the rules apply with effect from 1 April, and ignorance of them is not one of the grounds given for relief from sanctions in the new rule 3.9. My mission is to emphasise the positive aspect of the reforms; that is rather hard when we cannot even read the rules easily.