Two steps forward

By | 19th June 2013

 I am an avid reader of the Sunday broadsheets. Try as I might, I cannot bring myself to read them electronically. The enjoyment gained from a stack of newsprint on a Sunday morning outweighs the irritationof the newsprint coming off on my fingers particularly when there is nothing better to do but eat my poached eggs on toast with Marmite and sit in the sun sipping a long cool drink.

Not that I have been doing much sitting in the sun recently as our indifferent, not to say perverse, weather continues to conspire against all of us enjoying the so called summer; and yet, the papers still carry an allure. Not for me the endless scanning and scrolling of an IPad or Nexus.

Not everyone considers me to be an optimist!

Despite that, I cannot help feeling that what is now almost five years of austerity may be coming to an end. It is not only George Osborne who thinks so. To be fair, unlike one of his predecessors, he is not on record as claiming to have seen the green shoots of economic recovery. But there are as many commentators in the financial sections of the papers who claim to have detected improvements in the economic outlook for the country, as there are occasional breaks in the early summer gloom in the skies over Britain. (Not many, but an increasing number!) no one pretends it will be plain sailing but there are indications that the worst may be over.

This blog is not an economic commentary, and so I move on to consider whether there are any indications about the progress of the Jackson reforms. We are now some ten or more weeks into the new system of e-disclosure rules, case management and budgets and by now, there must be cases out there where the judiciary has been seen to exercise its muscles, for better or worse. Or perhaps not?

In conversations I have had with judges on this subject, I am told that they received training in the new rules and the way in which they should be applied. Apparently the word “in the judicial corridor” is that the new rules will be enforced and sanctions will be levied if appropriate. All well and good, but what is the evidence so far?

At this stage, I cannot say that Millnet has come across any horrors! By this I mean that I am not aware of any untoward reverses suffered by the parties for whom we have acted recently. So is this the norm across the country?

Are there no cases coming to light dealing with issues arising from the Jackson reforms and have the new rules come into operation seamlessly and without a whimper from litigants or lawyers?

Will there be anything for the Famous Five (Appeal Court judges appointed to deal with all appeals on issues relating to the new rules) to consider?

In an article published in The Lawyer dated June 17th entitled Opinion: reform is good, but take it easy, Hill Dickinson partner Andrew Evans suggests that there is evidence that the judges are getting tough on what he calls the causes of inefficiency and that they appear to be taking the reforms seriously.

I have to say I am pleased to hear this, because if it is true, for the first time in my career,we may be starting to see a real change in the way that litigation is practised. At worst, and if nothing else happens but inefficiency is penalised, we will have taken a huge step away from the complacency of old, where litigators broadly got away with flouting the rules because they knew that the judges were unlikely to exercise their existing powers to the detriment of the parties they represented.

So what is the evidence? Apart from anecdotal evidence from  fee earners, Mr Evans cites a speech by Mrs Justice Swift at the Manchester Law Society conference in which she spoke of a “real determination (by the judges) to embrace their new, more proactive role.”

Mr Evans also cites a judgment of His Honour Judge Pelling QC handed down in Manchester on May 9th 2013. The judgment appears to have been delivered immediately at the end of the hearing and the name is not given in his article but I think the case was probably Fons HR v Corporal and another company [2013] EWHC 1278 CH. In any event, it is what the judge is reported to have said which is important.

During the course of his judgment he said that:

“all parties and the wider litigation world should be aware that all courts at all levels are now required to take a much stricter view of the failure by parties to comply with directions.”

Mr Evans concludes his article with a caution against too much reforming zeal at this stage for fear that this may provoke an undesirable backlash; further, he and counsels a firm but fair approach.

If I may say so, that is precisely what we should expect from our judiciary. I have no objection to a firm but fair approach and nor, I suspect, will the vast majority of litigators and their clients. Not to enforce the new rules, however, would be a travesty and a real kick in the teeth for most users of our courts and an encouragement to the inefficient.

The optimist in me feels that the evidence so far supports the twin theories of “two steps forward” and “two cheers” but I remain concerned that this potentially good start should not be followed by “0ne step back.” After all, when you start out on a journey, there has to be a realistic chance of reaching the desired goal within a reasonable time.

Now is a good time to start.