Jackson strictly enforced

By | 3rd December 2013

I would love to be a fly on the wall the next time Sir Rupert Jackson is asked for his reaction to the latest consideration of his reforms by the Court of Appeal in Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 1537.

Last week the Court of Appeal dismissed Mr Mitchell’s appeal against the earlier order of Master McLoud who refused to allow his solicitors to file out of time a costs budget in excess of £500,000 for his libel action against The Sun. As a result of the Court of Appeal decision, the  former Chief Whip has had his costs budget capped at the cost of filing the claim and any court fee. It has been reported that that figure is £2000.

It is possible to look at this in a number of ways.For instance, you may take the view that this is very hard on the claimant, whose solicitors are a small firm which had so much work on at the time as well as significant staff shortages that they were a little late in filing the costs budget required by the new rules and who argued that the late filing was trivial and caused the defendants no harm.

Or you may take the view that this will all come out in the wash if Mr Mitchell succeeds in his claim. Of course, he will be in real difficulty if he loses apart from the terms of any CFA he entered into with his solicitors, the terms of which are rightly confidential.

Again, you may take the view that this will result in a denial of access to justice for the claimant, particularly if he cannot afford to fund the case himself. It is possible that his solicitors will agree to continue acting under the CFA, but the principle established by the decision in the Court of Appeal might cause hardship to another claimant in other circumstances.

Alternatively, you may take the view that this is exactly what the Jackson reforms are all about. My suspicion is that Sir Rupert will afford himself a small smile of satisfaction to see the courts apply his reforms with such zeal at this relatively early stage of their life.

Whatever your view, the Court of Appeal has sent out a very strong message that the parties to any dispute have a duty and an obligation to follow and abide by the rules of court, or face the consequences. Those of you who remember the Woolf reforms of the late 1990s will immediately recognise the significance of this because, whereas the Woolf reforms were poorly implemented and often ignored, the courts are clearly not going to allow the same fate to befall Sir Rupert’s efforts to reduce the costs of civil litigation.

This may well not be the last case on the new rules as clarification usually follows a change of regime. The clear message from the Court of Appeal is, however, that the rules are there to be obeyed. You cannot pick and choose. Anyone who thought that these rules would enjoy a more gentle introduction is much mistaken and, conceivably, will find themselves facing a negligence action.

Millnet can help here. For some time before the new rules came in, we were advising clients about how best to budget for a range of options in relation to how the documentation (paper and electronic) should be handled.

That experience is available to all our clients and anyone else who decides the time is right to contact us for a discussion.