Mr Justice Ramsey, the judge charged with overseeing the implementation of the civil procedure changes known collectively as “the Jackson reforms” has been out giving interviews in which he makes it clear that the reforms face a review. The Litigation Futures article is headed Judiciary launches review of unimplemented Jackson recommendations and the Law Society Gazette article is headed Ramsey: I’ll change Jackson if necessary. Both articles have been accompanied by cries of “I told you so” from various pundits.
Rule-making, particularly when done on this scale, is a major task, with endless scope for revision in the light of experience. An early policy decision was made to implement the changes all at once instead of (as I think I would have done it) rolling out discreet portions so that practitioners had the opportunity to understand them or, at least, to know what they were.
The counter-argument, at least in the area of case management and electronic disclosure, is that the components are interlinked – the new rules which require early exchange of information about electronic sources and about the scope of and method for managing disclosure are not entirely new anyway (in the sense that they build on earlier obligations), but make much more sense when combined with the budgeting requirements introduced in the new cost management element of the rules. The expression “case management” has always implied “costs management” anyway, at least since 1999.
We are still working through the implications of these rules and, in particular, the true effect of the changed rules about relief from sanctions in Rule 3.9 CPR. We have seen various judgments on this, but many of them turn on their own facts (as discretionary remedies always must) and many include the express observation on the part of the court that we are in a transition period. That must be ending now, with six months passed and the summer over, but we have yet to see any significant appeals which have broad messages of general application for judges and practitioners.
One express area for review is the exemption from the cost management obligations granted first to the Commercial Court and then to other divisions. That is the subject of specific consultation. Although the whole subject of the exemptions had the feel of ad hoc pragmatism about it in April, we are where we are and it makes sense that the senior judges should draw some lessons from cost management elsewhere to feed back into this specific debate. As the Law Society Gazette article puts it:
Ramsey was keen to emphasise there were always going to be ‘transitional provisions’ which would delay full implementation by up to a year. ‘One of the concerns was the time which would be taken in dealing with case and costs management in the initial Costs and Case Management hearing,’ said Ramsey.
‘Initially during the pilot they were taking much longer than we would wish but as people become more familiar with the process the time taken reduces.’
Meanwhile, stick with that phrase “We are where we are”. In the period following the launch of the UK Bribery Act, a lot of the question time at seminars was taken up with people complaining about the likely effect on their clients. My answer, stripped of its veneer of customary politeness, was that the time had passed for consultation – we must get on and cope with what the law ordained or, at least, with trying to find out what it meant.
The same is true of the Jackson Reforms. There is now an opportunity to contribute to the next round of discussions, but meanwhile the rules exist and must be dealt with.