One of the UK’s leading personal injury firms has described how the Jackson reforms have created a ‘climate of fear’ and made agreements between parties more difficult.
In its response to the Civil Justice Council call for evidence of the impact of Jackson, Thompsons Solicitors said recent statements from senior members of the judiciary have made a ‘mockery of fairness’.
Master of the rolls Lord Dyson last year refused relief from sanctions to lawyers representing the MP Andrew Mitchell after they were late submitting a costs budget. The case was the first in the Court of Appeal to establish a precedent following April’s reforms of case management.
Thompsons said it could provide ‘numerous examples of inconsistent decisions’ since the Mitchell ruling, with some judges not applying sanctions even for major breaches of the rules, whereas minor breaches have attracted ‘draconian’ sanctions.
The firm said parties that would previously work together to agree extensions of time have now refused to make any agreement.
‘The judicial exhortation for co-operation between parties is in the new regime falling on deaf ears,’ added the response. ‘Whereas previously apart from in a minority of cases (which were the only ones that came to the notice of the judiciary) the parties would agree between themselves to vary directions but in a way that avoided any change to the trial window.
‘However, now that obtaining procedural advantage has become such a potentially devastating prize, cases where there was co-operation are being replaced by litigation by ambush.’
Thompson, which handles around 70,000 cases at any one time, said it did not use damages-based agreements as ‘we don’t consider them fit for purpose’. With regard to conditional fee arrangements, firms are typically charging success fees capped at 20-25%.
Meanwhile, the City of London Law Society, which represents 15,000 City lawyers, has said it is ‘highly concerned’ about the impact of reforms on the conduct of litigation.
In its response, the CLLS litigation committee said Jackson has increased costs, not improved efficiency or proportionality and has ‘engendered an unduly formalistic approach to compliance’.
It added: ‘What might have been undue leniency in the past risks turning into undue rigidity now. Courts should be able to recognise when a party is genuinely trying to progress a case to trial and when it is stalling unnecessarily or jeopardising a trial date.
‘The approach laid down in Mitchell, and, in particular, its extension beyond the field of budgeting, and even beyond situations where there is a sanction for breach of a rule or order, does nothing to improve the efficiency of litigation. The potentially penal sanctions for breach of a rule will increase compliance costs for solicitors and, as a result, for their clients.’