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

Mitchell

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.

Durrant

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.

Footnote

1 The Court of Appeal decision in Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 1537 is available at http://www.bailii.org/ew/cases/EWCA/Civ/2013/1537.html.

2 The Court of Appeal decision in Bianca Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624 is available at http://www.bailii.org/ew/cases/EWCA/Civ/2013/1624.html.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions