Last week, the new costs budgeting regime was thrown into the spotlight when the law firm representing Andrew Mitchell MP in his libel action over The Sun’s ‘plebgate’ story failed to submit a costs budget in time.
Failure to get a budget in seven days before the first case management conference meant that the two-partner firm, Atkins Thomson, had its budget limited to court fees alone. It sought relief from sanctions, having experienced staffing problems due to maternity leave, as well as other difficulties. But Master Victoria McCloud was clear that the explanations put forward by the firm – ‘pressure of work, a small firm, unexpected delays with counsel and so on’ – were ‘not unusual’ ones, and could not justify granting relief from sanctions.
This was a strong signal in support of the tough line that judges have been instructed to hold when it comes to complying with costs budgeting rules. But it is only a first instance decision. McCloud granted leave to appeal of her own motion, so that guidance can be obtained from the Court of Appeal on ‘precisely how strict the courts should be and in what circumstances’. Limbering up on the sidelines is a quintet of Court of Appeal judges – dubbed the ‘Jackson Five’ – ready to get stuck in to these types of issues. When a Jackson-related point is appealed, at least one of the five (Lord Dyson, Lord Justice Jackson, and Lord Justices Richards, Davis and Lewison) will be on the bench.
The fact that five such judges have been nominated (rather than two, as Jackson originally recommended) shows just how keen the judiciary is to get appeals listed swiftly and start handing down some guidance.
But as primed as the CoA might be to hear Jackson-related appeals, and as eager as the litigation community might be to hear what it has to say, that doesn’t mean that clients themselves will be interested in being the guinea pigs whose cases are used to provide guidance – not if they will be the ones footing the bill. Surely they - or their law firms - will only want to appeal the various Jackson-related points if they think they have a good prospect of winning. All the appeal court can do, for the time being, is wait.
Rachel Rothwell is editor of Litigation Funding magazine, providing in-depth coverage on costs and the financing of litigation