UK: Jackson: Revolution Or Evolution?

Last Updated: 3 February 2014
Article by David Golten

In his foreword to 'The Review of Civil Litigation Costs: Final Report 2009' (the Jackson Report) Lord Justice Jackson states simply "In some areas of civil litigation costs are disproportionate and impede access to justice. I therefore propose a coherent package of interlocking reforms, designed to control costs and promote access to justice".

A more innocuous statement would be hard to imagine. A few short years later a more dramatic result could not have been imagined.

But is this revolution or evolution?

The way in which the courts have seized on the Jackson Report and the reforms to the Civil Procedure Rules it heralded has changed the culture of litigation in a way which it was hoped the Woolf reforms would but which they singularly did not.

In his 1996 report, entitled "Access to Justice", Lord Woolf also proposed changes to civil litigation. It was that report which led to the comprehensive changes to the rules which resulted in the Green and White books being replaced by a single set of rules known as the Civil Procedure Rules. I recall being in practice at the time and writing articles and giving lectures then on the revolution which was about to take place. The aim of the Woolf reforms we all said was to improve access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers. The subtext was to remove control of litigation from the lawyers and give it to the judges. So far as I could tell, though, it was business as usual. Time limits came and went and litigation was by and large conducted for the convenience of the legal professions.

Not so with the Jackson Report. As the cases which have followed it have demonstrated, the courts are saying "this time we mean it".

Two Court of Appeal decisions light the way: Mitchell and Durrant


In Andrew Mitchell MP v News Group Newspapers Limited1, Mr Mitchell, formerly the Government Chief Whip in the Commons, brought a defamation action against News Group Newspapers in relation to stories they printed in connection with the so-called 'plebgate' affair.

Mr Mitchell's solicitors failed to file a cost budget in accordance with the deadline set by a previous court order. At a costs management hearing, the judge held that Mr Mitchell was to be treated as having filed a costs budget comprising only the applicable court fees (amounting to hundreds of pounds rather than the hundreds of thousands of pounds which will be the actual costs). Costs budgets (introduced by Jackson) determine how much the successful party can recover. The impact for Mr Mitchell was that his solicitors' failure to comply with the time limits means he will only be able to recover the smallest fraction of his total costs in the event he is successful.

After Mr Mitchell's application for relief from sanctions failed, he appealed to the Court of Appeal. The Court of Appeal robustly and unanimously dismissed the appeal and in doing so sent out a clear message that non-compliance would no longer be tolerated. The Court explicitly stated that its decision aimed to support the change in culture that Lord Justice Jackson aspired to, and to force legal representatives to become more efficient.


In Bianca Durrant v Chief Constable of Avon and Somerset Constabulary2, the Court of Appeal considered and applied Mitchell.

Unlike Mitchell, Durrant concerned the decision by a first instance judge to grant relief from sanctions.

In particular, the judge in Durrant granted the Chief Constable relief from sanctions for non-compliance with an order requiring service of witness statements by a specified date, failing which the defendant could not rely on any witness evidence other than that of witnesses whose statements had been served by the specified date.

Miss Durrant appealed.

The Court of Appeal unanimously allowed the appeal. It substituted a decision refusing the application for relief from sanctions. The Court followed strictly the rigid approach laid down in Mitchell.

The effect of the Court's decision is that the Chief Constable was not able to rely on any witness evidence, all of the witness statements having in fact been served after the court ordered deadline and the order recording that the Chief Constable may not rely on such evidence. This would be fatal to most cases.

Practical guidance

What lessons are to be learned from these cases? The starting point is that where a sanction has been properly imposed by the judge at first instance and complies with the overriding objective, relief from sanction will be granted more sparingly than previously and the courts will adopt a firm line on enforcement. Similarly the appeal courts will uphold robust and fair case management decisions and will not lightly interfere with them. Conversely, decisions which fail to follow the robust approach laid down in Mitchell will be regarded as errors of principle and will not be allowed to stand.

Where the non-compliance is trivial, however, the court will usually grant relief provided that an application is made promptly. What will be trivial in one case, however, may not be in another: In Mitchell, a delay of 6 days in filing a cost budget was held not to be trivial but in Durrant, a delay of 21 hours in filing two particular witness statements might have been characterised by the Court as trivial, but for the two month delay in making the application for relief from sanctions.

The court will also consider why the default occurred. If there is good reason for the default, the court will likely grant relief. For example, if the reason why a document was not filed on time was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Overlooking a deadline or being overworked is unlikely to be a good reason.

The answer to the question "revolution or evolution?" is probably "both" but while there is a transition to a smoother and more efficient judicial system there will be pain for those who fall foul of the regime.


1 The Court of Appeal decision in Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 1537 is available at

2 The Court of Appeal decision in Bianca Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624 is available at

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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