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The Jackson Reforms – A Harsh New Regime?

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The Jackson reforms came into force on 1 April 2013 and over seven months later are still the hot topic on every litigator’s lips.

A major part of these reforms was to extend the Overriding Objective to include ‘compliance with rules, practice directions and orders’. The effect these few additional words have already had and will have on the litigation process going forward is already very apparent. Gone it seems are the days when one could agree informal extensions of time or even miss a Court ordered deadline without the fear of too severe a sanction other than an adverse costs award. Historically, only those parties that persistently miss court timetable deadlines have had their claims or defences struck out or been debarred from adducing evidence.

In the recent case Fons FH v Corporal Ltd., Judge Pelling QC stated that any party failing to comply with a rule, practice direction or order post Jackson is likely to face ‘severe sanctions’.

The courts are acting upon the new reforms and the litigation landscape has changed to become a much tougher place for any party failing to comply with the new rules, the litigation time limits and Court ordered deadlines. That being said, judges continue to perform a delicate balancing act as the court must not encourage “unreasonable opposition to extensions which were applied for in time and which involved no significant fresh prejudice” according to the judgement in Atrium Training Services Ltd (In Liquidation) heard on 7 June 2013 in which the application for an extension of time to comply with a Disclosure Order was granted. The judge gave consideration to the complex nature of the disclosure process in the case and stated that “everything would always depend on the circumstances.”

The impact of the new rules came into sharp focus again in the recent Court of Appeal decision towards the end of November in the libel case brought by MP, Andrew Mitchell, against The Sun in relation to the “plebgate” row. Essentially, his legal team missed the deadline for filing a costs budget which rendered a costs budget hearing wasted and an order was made that Mr Mitchell could only claim Court costs of about £2,000 (in a case where the litigation costs are expected to be about £500,000 for each side) in the event he wins.

The Court of Appeal said “The defaults by the claimant’s solicitors were not minor or trivial and there was no good excuse for them.” The Court of Appeal acknowledged the decision by the first instance judge “seems harsh in the individual case of Mr Mitchell’s claim”, but said the Court hoped their decision would send out a clear message and that legal representatives will become more efficient and will routinely comply with rules, practice directions and orders.

It is clear that a new age is upon us in relation to the compliance with the civil procedure rules and court orders. The clear messages from the Court of Appeal is that courts are becoming stricter on the enforcement of deadlines and that they will seek to ‘firmly discourage the assumption that an extension of time would be granted if there would be no obvious prejudice to the other side’. It seems though that the Court will however still grant extensions in circumstances where there is a compelling reason to do so.

These changes emphasise the importance of the necessity for clients and solicitors to work closely as a team to ensure that all documents and information relevant to the issues in dispute are identified and provided promptly and for the legal team to resource cases appropriately to ensure that pleadings, costs schedules, lists of documents and witness statements are completed within the timescale ordered by the Court and provided for by the civil procedure rules.

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