A tweet last week compared the first few days of the new case and costs management regime with 1939 – the reference was not intended to evoke anything belligerent but that period of uneasy calm known as the Phoney War which followed the formal declarations. We all know that something momentous is happening to those involved in civil proceedings, but until we start getting reports of case management conferences and feedback from the front line (to continue the war analogy) we cannot really tell how it will all play out at a practical level.
For the most part, I have stuck to straightforward recitals of what the rules say, reckoning that the MoJ’s botched launch of the amendments has so obscured the position that people are grateful simply to be pointed to the key provisions – as another tweet said, the MoJ was going to celebrate with a party at a brewery, but could not find anyone to organise it. At a conference this week, I offered delegates the choice between a summary of what the rules say and an analysis of their implications; they went for the summary, leaving it to Senior Master Whitaker to delve more deeply into what the changes mean for practitioners and clients at a later session.
It is worth pointing you to some of the events and articles which get more deeply into the implications.
Events from Epiq Systems and Consilio
I have already written about a seminar which Epiq Systems is running on Tuesday 23 April at 8:30am at 60 Cannon Street. Its title is Costs changes to the Civil Procedure Rules: join the debate, and the speakers are Master Colin Campbell, Senior Costs Judge, Michael Bacon, costs lawyer, Vince Neicho, Litigation Support Manager, Allen & Overy and Professor Dominic Regan, adviser to Lord Justice Jackson on costs budgeting. The focus is on the pre-estimates of eDisclosure costs which are required whether or not costs management has been ordered (an important point this, for those confused by the cost management exemptions), on keeping costs down by the use of technology and outsourced review, and on the crossover between the new costs regime and clients’ demands for more imaginative costs structures – the predictability and transparency required by the courts is, of course, much the same as a client wants from its lawyers anyway. Registration for this event is here.
On Wednesday 24 April Consilio is producing a webinar called The eDisclosure Shakeup: CPR 31.5 with Marla Bergman of Goldman Sachs, Garry Bernstein of Consilio and me. As I have written here, the focus is on the value of metrics in approaching costs estimates – if you keep information about past cases (or work with someone who does) then the apparently daunting task of estimating costs so early in the proceedings becomes more feasible. No one (not me, anyway) is saying that it is easy, and many cases will buck all known trends; nevertheless, there is commonality in the components of cases which, if captured, can the used to inform future decisions. Registration for this event is here.
Articles by HHJ Simon Brown QC
The indefatigable HHJ Simon Brown QC has produced a series of guides and articles which are indispensable to those preparing for case management conferences. New Law Journal has collected many of these together, with three articles from last year now supplemented by Costs Budgeting: teaching old dogs new tricks Part 1 and Part 2. These mix summaries of the obligations with practical advice on how to prepare for a case management conference, and are must-read sources for anyone about to face a CMC.
Dominic Regan on late amendments
Professor Dominic Regan also has an article on the New Law Journal site called The end of late chopping and changing, whose purpose is to explain why it is imperative to get directions and the budget right at the outset. The article gives good practical reasons, rooted in case law as well as the rules, which are valuable both for those who seek to amend and for those opposing amendments.
Kerry Underwood on relief from sanctions in Rule 3.9
We do of course have a new regime of enforcement and intolerance of breaches of rules, practice directions and orders. Or do we? An article by Kerry Underwood called Relief from sanctions: cleaning up Dodge City? sets out both the old and the new Rule 3.9 CPR and asks whether courts will really be much tougher now that the old list of relevant factors has been removed. He observes that “You do not actually need a Civil Procedure Rule to say that the Civil Procedure rules must be be obeyed”. He concludes that the old factors will still be relevant when courts consider relief from sanctions and is not convinced that we will see major changes in attitudes and outcomes.
Restatement and emphasis
Like so much else in these rules changes, Rule 3.9 merely restates and re-emphasises things which obtained anyway under the old rules. We do not strictly need the words “..at proportionate cost” in the overriding objective, partly because proportionality is already expressly referred to there and partly because proportionality guides much else in the existing rules as well as in cases like Nichia v Argos and Digicel v Cable & Wireless. The list of possible disclosure orders made in the “menu option” in fact adds nothing to powers which the court already had. The only thing which is really new is the cost management regime, and even that has roots in existing judicial duties to control costs.
Sanctions applications and proportionality
I foresee a conflict between proportionality and the new opportunities to wrong-foot an opponent who has put itself the wrong side of the Rule 3.9 compliance duties. It may appear disproportionate, having regard to the overall costs of the case, to take every point against a party who is in breach of a rule, practice direction or order, but is it not one’s duty to do just that if opportunity arises? One of the many hard tasks facing judges here is to walk a line between enforcing compliance (as both the rules and their training require) and appearing to encourage interlocutory applications which both run up costs and bring extra burdens to thinly-resourced courts.
The Disclosure Report N263
One thing which is causing unnecessary concern is the standard form of disclosure report required by Rule 31.5 (I would give you a link directly to the section if the MoJ had bothered to bookmark and hyperlink it properly). I use the word “unnecessary” advisedly – the rule itself does not refer to a standard form, unlike, for example, the express reference to numbered forms in Practice Directions 31A and 31B. Someone at the MoJ has knocked one up and called it Form N263 – by the looks of it someone who is disconnected from the realities of life and stuck in the good old days of pre-1999 Order 24 RSC. Even in those days you did not have to list every document (as N263 implies you must) where it could conveniently be done by classes, and you certainly did not have to do so in advance of the summons for directions (that undemanding formal event which has been replaced by the rigour of the case management conference).
It is extremely unhelpful to produce a form suggesting that such a list is necessary at the same time as the new emphasis on compliance makes lawyers fearful of getting anything wrong. Whilst I am careful not to purport to advise any practitioner to ignore the questions in an MoJ form, I do suggest a focus on the requirements of the rule itself, as opposed to the stupid form. Rule 31.5 requires that a party “describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case”, as well as saying where the documents are located and how they are stored. If anyone tries to tell you that you must treat this as an obligation to make a full list of documents, merely refer them to the words “at proportionate cost” at the top of the overriding objective, and remind them that the case management conference decides the scope of disclosure. That would be pretty pointless if you had already been required to list all your documents in the MoJ’s form.
Do read the Rules…
Whilst you are looking at Rule 31.5, which I urge you to do, you will note that it is still headed Disclosure limited to standard disclosure. The whole purpose of the new rule is to open out the options and to require real thought as to the proper order to be made; standard disclosure may remain the yardstick for estimating costs, but it is no longer the default as the heading implies.
The changes are hard enough to deal with without all this obfuscation. The two events and the articles referred to in this post may help you get it right.