Jackson update: some useful cases and commentary

It is hard to keep up with the flow of case reports and commentary  coming out as courts and lawyers grapple with the implications of the Jackson civil procedure reforms which took effect in April. Here is a short selection,  in no particular order:

Litigation Futures has an article called High Court fires post-Jackson indemnity costs warning. It considers Igloo Regeneration (GP) Ltd & Ors v Powell Williams Partnership [2013] EWHC 1859 (TCC) whose focus is on the circumstances in which indemnity costs are payable by the losing party rather than merely  costs on the standard basis. For this to happen, the judge said, “there must be some conduct which takes the case out of the normal run-of-the-mill.”

His Honour Judge Simon Brown QC has been writing an extremely useful series of articles on post-Jackson costs management for the New Law Journal. His most recent one is headed Getting Active! Its focus is on the active management which has been expressly required of judges since 1999 and on the duty of parties, which is equally expressed in the rules, to “help” the court in the active management task. As always with this judge, his commentary is firmly rooted in both the rules and in case law and anyone reading it will be in no doubt that the modern rules are a logical progression of developments going back before 1999.

Judge Brown suggests practical ways both of helping the judge to comply with the general principles as well as the specific rules, and he considers also the proper use of technology, both in case management and at trial. He ends with the observation that lawyers have strong incentives to acquire case planning and budgeting skills if they are to “survive and thrive”.

Meanwhile, Professor Dominic Regan pulls together the rules aspects and the same point as is made by Judge Brown on the future of legal practice. His article in the New Law Journal The New Normal? has the sub-heading The Jackson reforms may yet prove to be the saving of the legal profession. He kindly draws attention to my recent arguments to the effect that barristers are in a good position to “dive in and out on a in a consultancy role… to assist with chunks of work”.  There is more to this than the intellect and articulacy which you might expect from barristers. They are, Dominic Regan observes, “the ultimate higher/fire staff” whose skills can be brought to bear when needed and and for no longer they are needed.

My focus is on one small corner only of the business of being a lawyer.  Downward pressure on costs exerted by clients is now matched by the enthusiasm, or at least duty, of judges to control costs.   The best way to reduce the costs of disclosure is to focus on minimising the scope of disclosure and on considering alternative ways – by the use of technology and managed review – to carry out the exercise within the rules. Those rules  provide ample opportunity to argue for lesser disclosure, and it is for the parties, as well as the judges, to think through how to use them properly for this purpose.


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 Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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