Lord Justice Jackson has published his preliminary report into the costs of Civil Justice.
The first phase of the Review included meetings with court users and professionals, consideration of written submissions, and study of overseas costs rules. The written submissions included submissions made by the SCL following a meeting which took place on 13 January 2009: see here. The information gathered by the Review was then set out in the preliminary report, together with a discussion of the competing arguments for and against particular proposals for change.
The chapters of the preliminary report which are most relevant to the activities of the SCL are:
- Part 7, chapter 33: Chancery litigation including intellectual property (see in particular paragraph 3.17)
- Part 7, chapter 34: TCC litigation
- Part 8, chapter 40: electronic disclosure
- Part 8, chapter 41: disclosure generally.
Reference should be made to the preliminary report itself for a detailed discussion of the questions raised.
Phase 2 of the Review consists of consultation, and responses are to be submitted by 31 July 2009.
SCL members who wish to have their views reflected in any further submissions to be made by the SCL may wish to respond to the following questions. Responses are requested by Friday, 26 June.
Responses should be emailed (or faxed, posted or sent by DX) to Clive Freedman, SCL Trustee, whose contact details are as follows:
email: cfreedman@3vb.com
3 Verulam Buildings
Gray’s Inn
London
WC1R 5NT
DX: LDE 331
Tel: 020 7831 8441
Fax: 020 7831 8479
The questions are set out below but can be downloaded for ease of use from the panel opposite.
THE PROPOSED TCC PROCEDURAL REFORMS
Pre-Action Protocols (see preliminary report chapter 34 section 4)
1 Does compliance with Pre-Action Protocols Process generally increase costs?
YES/NO
2 Should Pre-Action Protocols Process be replaced with no more than:
– a letter before action; and
– a response; and
– a meeting?
YES/NO
3 If the Pre-Action Protocol Process is to be retained should the “pre-action process” commence only after issue of the claim form so that:
– the court can control the process
– the costs of the process can then become costs of the action?
YES/NO
4 Would you be in favour of the establishment of a pilot scheme to investigate whether the proposal at paragraph 3 above results in any saving of costs?
YES/NO
List of Issues (chapter 34 paragraph 5.5)
Jackson LJ states that TCC judges and practitioners are disinclined to follow the Commercial Court’s approach in relation to drawing up lists of issues, referring to a a fear that this will become yet another stage in the procedure, adding further expense and duplication of effort.
5 Should the TCC decline to follow the Commercial Court’s approach in relation to drawing up lists of issues so as to avoid further expense and duplication of effort?
YES/NO
Prolix Statements of Case and Witness Statements
6 Should the TCC Judges have the opportunity at the end of a case to give a ruling identifying unnecessarily prolix statements of case and witness statements and stating that the costs of these statements (or at least the unnecessary parts of them) should not be allowed on any detailed assessment?
YES/NO
Disclosure
7 Should standard disclosure be retained [see chapter 41 section 6]?
YES/NO
8 [See chapter 41 section 6] If standard disclosure is not to be retained should it be replaced with:
8.1 disclosure limited to documents relied upon, with the ability to seek specific disclosure in addition?
YES/NO
8.2 issues based disclosure as contemplated by the Commercial Court?
YES/NO
8.3 reversion to the former “train of enquiry” test for whether documents are disclosable?
YES/NO
8.4 no default position so that at the first CMC the Court and the parties determine the appropriate process to be applied in the particular case?
YES/NO
8.5 more rigorous case management (eg greater use of sanctions, ordering the parties to participate in meetings before exchanging Lists)?
YES/NO. IF YES,WHAT ARE YOUR PROPOSALS?
8.6 using disclosure assessors in “heavy” cases?
YES/NO
8.7 greater use of cost-shifting, eg with the requesting party meeting the costs of specific disclosure applications unless documents of real value are produced?
YES/NO
8.8 stating in appropriate cases in an order of the court (following agreement of the parties to this effect) that legal professional privilege can still be clamed after disclosure of a document to another party (as in the USA’s FCRP rule 26(f)(3)) [see chapter 40 paragraphs 7.5 and 8.3]?
YES/NO
9 Can you identify any particular approach to e-disclosure which has saved costs in particular cases?
10 Can you identify any particular approach to e-disclosure which has caused wastage of costs in particular cases?
11 Do the costs figures set out in chapter 40 section 6 of the preliminary report accord with the experience of court users?
Costs
12 Should summary assessment of costs be abandoned and be replaced with a right to an interim payment for costs followed by a detailed assessment [see Part 10 chapter 52]?
YES/NO
FUNDING AND ACCESS TO JUSTICE
Conditional Fee Agreements (chapter 16)
Jackson LJ has already expressed the provisional view that following the retraction of legal aid, either CFAs or some other system of payment by results (contingent fee agreements, CLAF, SLAS, third party funding agreements etc.) must exist in order to facilitate access to justice.
13 Are CFAs in their present form satisfactory?
YES/NO
14 If not, what reforms might be made in order to create appropriate incentives for all involved in the litigation process?
Contingency Legal Aid Funds (chapter 18)
Contingency Legal Aid Funds (“CLAFs”) are self-funding schemes under which the costs of funding claims are paid for by means of a levy of some sort on successful claims.
15 Do you have any views on the proposals for this sort of funding option? If so, do you have any proposals for how such a system might be operated?
Contingency Fees (chapter 20)
Jackson LJ received many submissions on contingency fees, the overwhelming consensus of which appears to be that the US system should not be adopted.
16 Should solicitors and counsel be permitted to act on contingency fee agreements?
YES/NO
FURTHER COMMENTS
17 Please set out any other comments which you wish to make.
Prepared by Clive Freedman (SCL Trustee)
3 Verulam Buildings
Gray’s Inn
London
WC1R 5NT
DX: LDE 331
Tel: 020 7831 8441
Fax: 020 7831 8479
cfreedman@3vb.com
