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Jackson / Civil Litigation Reforms: Looking Ahead

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Most of us involved in legal costs will by now have had the chance to come to terms with the major changes that have been brought in since 1 April 2013.

Looking ahead to the second half of 2013 there are some further key developments due:

Further amendments to the Civil Procedure Rules

The Civil Procedure Rules Committee has confirmed that a number of further amendments made in consequence of the Jackson/civil litigation reforms will be included in the next CPR update, scheduled for October 2013. The statutory instrument setting out the amendments is expected to be published in July 2013 (to come into force in October 2013).

New format for bill of costs

A new format for bills of costs for detailed assessment was recommended by Jackson LJ in his final report of his review of civil litigation costs.

To bring things up to date, a proposed new format for bills of costs has now been developed by a working group, which sets out work done by reference to phases, tasks and activities. Additionally, the working group has considered standard phase, task and activity time recording codes for litigation, similar to those used in the United States. An initial consultation regarding the proposed codes recently ended.

In a speech at the Commercial Litigation Association Conference on 14 May 2013, Ramsey J indicated that he hoped that the new bill of costs and standard codes would be in force by the end of 2013.

If the working group's proposals are agreed then the use of the new bill of costs format and presumably the standard phase, task and activity codes which form an integral part of it will be mandatory if costs are going to be presented to and assessed by courts in England and Wales in this new era.

Costs Management Exemptions

Exemptions to the costs management regime are presently under review. Currently, the following exemptions apply to automatic costs management (as set out in CPR 3.12(1)):

- Cases in the Admiralty and Commercial Courts.

- Cases in the Chancery Division, the Technology and Construction Court (TCC) and the Mercantile Court where, at the date of the first case management conference, the sums in dispute exceed £2 million, excluding interest and costs, save where the court orders otherwise.

A sub-committee of the Civil Procedure Rule Committee (CPRC) has been set up to review the exemptions, including the “blanket” exception in the Admiralty and Commercial Courts. A consultation paper has been published, the aim of which being to replace the existing CPR 3.12(1) with a new, definitive rule. The sub-committee is expected to report back to the CPRC with its findings in October 2013.


Damage Based Agreements

On 1 April 2013 damages-based agreements (DBAs) became legal in all contentious business, other than criminal and family proceedings. The DBA Regulations 2013 provide the requirements for DBAs, however relatively little detail is given and there are issues and difficulties regarding how DBAs should work in practice.

The Law Society has suspended work on a model DBA until the Ministry of Justice addresses concerns over their drafting and enforceability. The Law Society advises that care should be taken when entering such agreements until the DBA Regulations are amended.

Litigants in Person

Due to poor economic conditions, the reduction in legal aid and the increase (initially to £10,000) in the small claims track limit it is widely expected that there will be a large increase to the number of litigants in person. It remains to be seen what impact this might have on the court system.

A National Forum for Implementation of the Report on Access to Justice for Self-Represented Litigants took place in London on 30 November 2012. This provided an opportunity to look ahead to what more could be done given the expected increase in numbers of litigants in person. A further forum is expected at the end of November this year and upcoming developments expected this year include:

- Publication of Practice Guidance from the Master of the Rolls on the terminology to be used for litigants in person.

- A revised guide for litigants in person produced by the Interim Applications Court of the Queen's Bench Division.

- Publications of "A Guide to Representing Yourself in Court" by the Bar Council to help litigants in person involved in civil proceedings.

Summary

The reforms by LJ Jackson were implemented on 1 April 2013 but it will be some time before the after-effects settle down.

Good luck!

 

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