Costs management reforms are far from perfect, but allowing more judicial discretion is surely the worst solution.
Lord Justice Jackson, with the greatest respect, is starting to sound like the baddie at the end of the Scooby Doo cartoons.
He’s put down the perfect plan, carefully thought through and calculated, and it would have worked if it wasn’t for meddling ministers and moaning lawyers.
To a certain extent he’s right. Costs management, in a world free from interference or reality, is a worthy and worthwhile pursuit which can bring undoubted benefits for clients. As Jackson himself noted, ‘when done properly costs management works well’. But therein lies the crucial caveat.
At times during a lecture given yesterday, Jackson resembled a politician showing off his ‘man of the people’ credentials. The lord justice had met a practitioner from Pontefract, a lawyer from Leeds, and a solicitor from Solihull, and most told him how swimmingly they thought costs management had been.
What Jackson can’t control is that courts and their users are simply ill-equipped to deal with the extra work and time required to make costs management work in practice as well as it does in theory.
It was a sea change overseen by judges who in many cases didn’t know what they were doing and lawyers still getting to grips with the new rules and sent into a tailspin by the Mitchell and Denton judgments.
Jackson’s answer to delays was to fundamentally undermine his own reforms
Judicial training to get the bench up to speed has been risible – or ‘necessarily brief’ as Jackson called it. You simply can’t expect judges, many of whom will never have seen a costs budget in their lives, to manage this system efficiently. Even Jackson’s proposed solution - a compulsory full-day module on costs management - seems barely enough to scratch the surface.
Is it any wonder that we have delays of up to nine months for case management hearings? Could this not have been foreseen?
Curiously, given that so much of his lecture emphasised that costs management is here to stay, Jackson’s answer to delays was to fundamentally undermine his own reforms with an escape for those struggling.
Judicial discretion, allowing an opt out from costs management if the case is heading towards interminable delays, is surely the most flawed response you could imagine. To give judges, many of whom may be bewildered and/or fed up with the costs budgeting process, an escape route is to destabilise everything we have worked towards for the past two years.
Master of the rolls Lord Dyson, who followed Jackson on stage, commended his colleague but was quick to slap down this idea, suggesting too many judges will be quick to play the ‘lack of resource’ card and throw costs budgets into the long grass.
For the sake of clarity, exceptions surely cannot be granted. Jackson was right again when he said this is something the profession has to live with. To water down his reforms is surely to leave everyone involved more confused than ever.
John Hyde is Gazette deputy news editor