2013 – The year of the Jackson reforms

Although January is usually spent planning for the challenges of the forthcoming 12 months, it also provides an excellent opportunity to reflect on the preceding year and to review what lessons can be learnt, if any, from key events. If you speak to any litigation lawyer, it will be hard to find one who doesn’t state that the implementation of the Jackson reforms was the most important legal moment of 2013. This is particularly true in light of the Court of Appeal’s judgment in the case of Andrew Mitchell MP v News Group Newspapers Limited, which was delivered on 27 November 2013. Lord Justice Jackson was tasked with implementing the biggest change to Court procedures in more than 10 years. Following a long period of consultation, these reforms were implemented on 1 April 2013. Amongst various other things, these purported to effect a profound change on costs, seeking to make these more proportionate to cases. More widely however, it is apparent that the reforms have provided ammunition to Judges to state that compliance with Court rules is essential, the effect being that any non-compliance may result in strict adherence to stringent measures. The case involving Andrew Mitchell MP concerned the now infamous ‘Plepgate’ affair involving The Sun newspaper.  Defamation proceedings were commenced, which were subject to the Defamation Proceedings Costs Management Scheme. Under this, parties were obliged to prepare and file costs budgets not less than 7 days before the Case Management Conference. Instead of complying with these rules, the costs budget was filed the night before the CMC. At this conference, Master McCloud made an order that the Claimant was treated as having filed a budget comprising only the applicable court fees. The result of this meant that, even if Mr Mitchell had won his case, The Sun would not have had to pay his legal fees, as is the norm. Although she accepted that this was a draconian sanction and gave permission to apply for relief, Master McCloud explained that it was an indication as to what may be an appropriate sanction for breach of the requirement to lodge a budget. At the application for relief from sanctions relief was refused. In a robust judgment, Master McCloud referred to the fact that judicial time is thinly spread and the need to allocate a fair share of judicial time to all litigants. It was clear that the Jackson reforms heralded a stricter approach to rule compliance. Mr Mitchell appealed this decision to the Court of Appeal, who dismissed it. In their judgment, the Lordships stated that litigation must be conducted efficiently and at proportionate cost. Additionally, they stated that compliance with rules, practice directions and court orders should be enforced. These are the two cornerstones of the Jackson reforms and are stated as being of paramount importance. Master of the Rolls Lord Dyson stated that overturning the appeal would be a major setback to the change in culture envisaged in the Jackson reforms. Although it was accepted that Mr Mitchell’s solicitors had been stretched very thin in terms of resources, which had led to the late submission of the costs budget, relief was refused on the basis that these problems were not minor or trivial, nor was there a good reason for them. The message therefore was clear, a new no-nonsense approach to non-compliance with court deadlines had arrived. Although some litigation lawyers are likely to have been shocked by the strict enforcement of Court rules post-Jackson, others will almost certainly be glad that there is some clarity as to where everyone stands. One thing is certain, it will be extremely important for lawyers to comply with Court deadlines from here onwards, or make an early application to amend where this will not be possible. Failure to do so is likely to result in a lack of sympathy from the Court and the imposition of a wide range of sanctions.

Published January 7, 2014

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