If you are staying abreast of the development of best practice after the coming into effect of the Jackson reforms, you are presumably following the series of articles by the indefatigable Judge Simon Brown QC, head of the Mercantile Court in Birmingham.
Simon Brown has written a number of articles on the subject which have been published in the New Law Journal (NLJ).
One of the good points of the NLJ series is that if you miss an article you can always catch up with the series by following the links printed at the foot of the article you are reading. In that way you do not miss out on the practical tips given by one of the leading proponents of and practitioners in the new rules.
The latest article is called “Getting active!” and concerns costs management. If you read no other article on this subject, this is a must.
It takes the reader through the court’s duty actively to manage cases and the ten phases of civil litigation.
You may be thinking, “I have heard all this before and I am dealing with it.” If so, all well and good!
However, on the basis that there may be “one poor sinner” who has not yet got to grips with the new regime, let me offer one or two tasters to encourage you to read this article above all others on the subject:
- Did you know that “The judge will expect litigators appearing before him to have been CPD trained in e-Disclosure as recommended in para 2.9 of Chapter 37 of the Jackson Report and to know CPR 31 and its PD.”?
- The court must further the overriding objective by actively managing cases, but do you know the twelve matters which the court must consider as set out in CPR 1.4? After all, the obligation to manage is mandatory.
- When you budget for costs, have you appreciated that “these budgeting costs need to be carefully monitored as they are proportionately linked to the total of the agreed or approved budget which might be reduced at the CMC or ordered to be reworked. This might result in the party or his representatives bearing the burden of the excess costs of his budgeting exercise.”?
- The judge will have in mind that the documents he sees in court will have been produced by a process designed only to produce the relevant material and that the days of filling a court with lever arch files really are at an end. Lawyers are “relieved of the anxiety of judicial criticism of failing to disclose documents that the judge does not require—judicial responsibility validates their position.”
- In the modern era of social media, texts and emails, witness statements taken by lawyers after the event are not nearly so valuable as formerly.
This article is really a checklist for modern litigators. While Judge Brown acknowledges that the views expressed in the article are his personal views, it is worth remembering that he is the docketed judge case managing commercial cases from the CMC through to the end of a trial and he has piloted costs management as part of active judicial case management since 2009.
If you are litigating in the Mercantile Court in Birmingham, you are likely to feel his influence. Even if you litigate elsewhere, still read his views and ask yourself whether you fancy trying to persuade another judge in another court that what Judge Brown says either does not represent the position under the rules, or that you have a differeent and better way of dealing with costs management or that you are somehow exempt from compliance with the new rules.
I wish you luck in that endeavour, if that is the way you want to go, but Millnet can offer practical assistance if you are interested.
We have seen a jump in enquiries across a wide range of law firm clients requiring assistance in areas such as the Disclosure Report, the EDQ, assessing electronic disclosure costs and tactics ahead of the first CMC. Drawing on our practical experience, we have moved on from merely lecturing lawyers about what they should do in this field to offering tailored and customised workshops intended to provide a forum for small groups of lawyers to focus on practicalities and tactics.
Let us know if you would like to know more by emailing firstname.lastname@example.org but in the meantime, read what Judge Brown has to say.
It may be the best few minutes you will spend this year!