Gunpowder, Treason and Plot

By | 6th November 2013

The past week has seen Hallowe’en and Bonfire Night. Ghouls and spooks and the sometimes dubious game of trick or treat abound which shows how much has changed in this country since the days when virtually no one in England took any notice of Hallowe’en (although my understanding is that north of the border, the Scots were always into trick or treat). Now it has become yet another “festival” to be enjoyed by the many and dreaded by the few where money can be made by amongst other things sellers of pumpkins and face paint.

Bonfire Night has also changed. Nowadays, bonfires rarely have an effigy of anyone on top (we are presumably too sensitive for all that Guy Fawkes stuff) and fireworks have moved generally from back gardens to public areas often so vast that the public is cordoned off at such a distance that even the bonfire looks like a small Tilley lamp in the gloom; all on the grounds of Health and Safety, you understand.

In the ensuing clamour, you could be forgiven for failing to notice that the past week has seen the publication of an article in the New Law Journal on litigation trends. Follow this link and scroll down to the Litigation Trends icon which allows you to download the article.

The author, James Baxter, introduces the first of what promises to be a quarterly review of where the legal profession stands in relation to the Jackson reforms now that we are more than seven months on from implementation.

The result is profoundly dispiriting. Almost all the contributors to the survey are gloomy about the prospects of the Jackson reforms having any effect except to push up costs, precisely the opposite of the effect Jackson set out to achieve.

Comments range from the apocalyptic:

  • 93% of those surveyed think that the Jackson reforms will not increase access to justice as promised

via the merely dire:

    • We do not think the new disclosure regime will decrease costs. If anything it will increase them”

    • “Both Woolf and Jackson have increased (and accelerated) the overall cost of litigation”

    • “Budgeting is likely to result in a massive amount of satellite litigation”

 through to the scarcely more enthusiastic:

  • Clients are increasingly cost conscious and want certainty about the expense of legal services and tangible value for money from their lawyers” 

One of the lawyers expressed the hope that things would come good in the end, poiting out that the Woolf reforms took time to settle down and the same is likely to be the case with Jackson, but overall, it is a depressing picture, particularly if you are engaged in advising clients here and now on how best to achieve their objectives while pursuing the particular piece of litigation on which they are engaged.

In this context, I have some comments of my own:

  • I wonder if the prospects are really as gloomy as some of the commentators fear.
  • Costs budgeting/ case management and the new disclosure rules are all designed, over time, to reduce the overall cost of litigation.
  • As with any reform, I suspect that it is the overall effect we should look for. In other words, when we look back, will we see an overall decrease in the costs of litigation? If so, the reforms will have worked. If there are unintended consequences of this decrease, they can be dealt with at a later stage (see the comments in the article about the review of the regulations relating to DBAs). 
  • Judges now have the tools (if they did not have them before) to reduce the amount of material which is put before them so that it is consistent with what the court needs to decide the issues between the parties.
  • If the parties don’t like it, there is nothing, I submit, to stop them putting more before the court, but they should not necessarily expect to recoup the cost of doing so, and in appropriate circumstances, may well find themselves paying for the extra costs to which they have put their opponents in so doing.

Guy Fawkes and his fellow conspirators were condemned to be hanged and afterwards to submit to that particularly gruesome mediaeval process of drawing and quartering, while still alive.

It really is not that bad, guys! Surely, it comes down to whether the parties actually want to make the new rules work and, assuming they do, to ensure that they have the tools to help them do so. That means knowing enough about the technology available to assist in reducing the data needed and a robust approach by the judiciary to disallow the deployment of “weapons of mass disclosure.”

As one of the commentators is quoted as saying:

“The new regime is as dependent on judicial time, resource and experience as the previous incarnations of the disclosure regimes. There is clearly scope within the new rules to decrease costs. Serious question marks remain as to whether all parties in litigation will share a sufficiently close common desire to reduce the scope of disclosure to bring about a major reduction, absent sufficient judicial resource and time to ensure that it happens in any event.” Graham Huntley, partner, Signature Litigation

I agree and I think clients will agree too. I have mentioned previously (Time to share? and also Hang a Shingle) the efforts by Casey Flaherty, General Counsel at Kia Motors America, Inc, to test the technology literacy of lawyers wanting to act for his company. Mr Flaherty’s view is that if you cannot pass the kind of test he has devised, (see here) then you may be losing (his) business and you will almost certainly face a call for a reduction in your fees to take account of the inefficiency he perceives in your output.

That may be painful but less painful,I suggest, than hanging, drawing and quartering!!