Motherhood and apple pie

By | 18th January 2010

Each of us will recognise a seminal moment in our personal and professional lives. In our personal lives these moments often relate to family: the birth of a child, a wedding or the death of a close family member or friend.

In our professional lives as lawyers it may be the day you qualify, the day you retire, the day you become a partner or the day you have your first big success in court or the boardroom.

In a wider sphere, lawyers may regard the property reforms of 1925 as a seminal moment in the development of the law, or the introduction of the Human Rights Act or the day you discover (if in fact you ever did!) that Lord Denning was not invented to be the curse of the law student for his controversial judgments but actually had something interesting to say about the law of estoppel.

Actually, one of the best things about the wonderfully clear and down to earth Lord Denning was his reply when asked what he thought about “stepping down” from the House of Lords to become Master of the Rolls. Reflecting on the three man composition of the court in the Court of Appeal, he is supposed to have replied that the chances of him doing justice in the Court of Appeal were two to one against!

We all love anniversaries and the celebration of them. So, what I wonder will future generations of lawyers make of Thursday January 14th 2010? Will it come to be regarded as a seminal moment in their lives or will it be like a Catherine wheel which spins off its post mid cycle, namely eager anticipation, followed by a momentary thrill and then disappointment?

Those of you who come here from time to time will know that I often meander round a subject but that I usually get to the point in the end! I apologise if you have already guessed what I am talking about, but for those of you who are still wondering, and are still awake, I am referring to the publication on 14th January of Lord Justice Jackson’s  mammoth Review of Civil Litigation Costs: Final Report.

To his immense credit, the huge report was delivered on time at the end of last year and has been published without undue delay in the first part of January. It is extremely readable and is written in language which pulls no punches as any of you who have dealt with Rupert Jackson or attended one of his consultation meetings in the past year will have come to expect.

For ease of reference, I have included a link to the report above, but for those who have better things to do than to download and read the almost 600 pages in this huge piece of work, I have made a short list of the key items in my previous post [Jackson: key recommendations, 15th Jan, 2010] which I hope will give you a flavour of the recommendations. There is also a useful summary of the recommendations at page 463 of the report.

Will the report stand the test of time? Will it come to be regarded as a seminal moment in the development of litigation in our sophisticated system? Will it do what it set out to do? Will future generations of litigators and their clients say that this was Jackson’s finest hour?

I have to keep reminding myself of the terms of reference under which the report has been written. The report deals with the whole range of civil costs because that is what the judge was asked to do. Yet, while I acknowledge his brief and the huge amount of work and energy which has gone into creating this report, I find I cannot suppress a feeling of disappointment at the impression my admittedly cursory reading of the report has produced in me.

There is, of course, a lot about personal injury litigation and why not? It is the most prevalent type of litigation in our system.

And yet………?

I am sure that Lord Justice Jackson will argue that it is beyond the remit of his report, but my appetite for what I had hoped he would say had been well and truly whetted by Chapter 40 of his preliminary report and what he had to say about e-Disclosure and dealing with the use of technology.

Add to that, the (dare I say, seminal?) decision in Earles v Barclays Bank decided last October and I had legitimate and persistent hopes that the report would give more than a passing nod to how litigation costs might be reduced by the appropriate use of the technology available.

To be fair, Jackson says that things seem to be working pretty well in the TCC and in the Commercial Court. He calls for more training of judges and lawyers in how to deal with E-Disclosure effectively. He also points to the forthcoming Technology Questionnaire and the changes to the Practice Direction under Part 31, and suggests that standard disclosure should give way to a menu of options.

However, I cannot help thinking that this is a missed opportunity to recommend specific changes which need to take place in the way the courts and the litigants approach the whole issue of disclosure/discovery. Given the magnificent backing that the report received at the post publication press conference from both the Lord Chief Justice and the Master of the Rolls, any proposed changes would have had an excellent chance of coming into effect in 2010, thus giving a significant boost to the overall objective of reducing the cost of litigation.

Instead, we are left with items such as a campaign to improve awareness of ADR and more training for judges and lawyers. Both are reasonable and desirable but they need money. With a General Election looming and both major parties competing to persuade the electorate that they can cut more Government spending than their rivals, I do not see where that extra money is coming from.

Changes in the rules do not need primary legislation and, at a stroke, would have delivered a reduction in costs. Much now rests on the success of the Technology Questionnaire and the new Practice Direction.

I suspect most of us are in favour of more training and more ADR but is that not just like being in favour of “Motherhood and Apple Pie”?