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10 April 2012
There has been much discussion and debate concerning the proposals in the Jackson Report on the reform of civil litigation costs, which was published in January 2010, particularly in relation to the funding of cases and the remuneration of the lawyers who conduct them.
Originally intended to come into force in October 2012, the reforms - contained in the Legal Aid, Sentencing and Punishment of Offenders Bill - have now been delayed until April 2013. Although some of the reforms require primary legislation, others will be brought into force through changes to the Civil Procedure Rules (CPR). The Civil Procedure Rule Committee has produced a number of draft rules to implement the changes, the intention being that these will be introduced for the so-called 'big bang' implementation date of the Jackson reforms in April 2013.
As part of the implementation programme of the Civil Litigation Costs Review, Lord Justice Jackson is delivering a series of lectures that focus on different aspects of the reforms. Past lectures have covered topics such as changing the culture of case management, the costs of disclosure and litigation funding. The latest lecture in the series examined the role of technology - specifically information technology - in implementing the reforms and considered how it could be used to deliver a more efficient civil justice system.
The lecture stressed that most, if not all, of the proposed reforms have consequences for technology and its use not only by the courts, but also by legal advisers. It emphasised the need for lawyers to consider carefully the ways in which the reforms will affect the role of technology in civil litigation, drawing particular attention to a number of topics.
Use of standard directions
An application is being developed which will generate appropriate directions in county court cases across England and Wales. This automated system is also intended to be used in certain high court cases in district registries. The model directions will be included in the CPR and will be the starting points for judges in case management decisions. If this system is successful, it is hoped that modified forms of the directions will be implemented across the divisions of the High Court.
Monitoring compliance with court orders
The final report recommended that, as far as possible, the court should monitor the progress of parties to secure compliance with orders. It is envisaged that the most effective way to do this, in terms of time and money, will be to implement a bespoke automated system that will remind parties of upcoming deadlines and notify the court if a deadline is missed. Given the additional costs of such a system, it is likely to be used only for heavier multi-track cases. Furthermore, given the time needed to design such a system, it is unlikely that this will be ready to go live in April 2013 with the other reforms.
A new costs management budget form is being developed which will be completed electronically. Parties will be required to provide a budget at the outset of the litigation and the court will manage the litigation within the approved budgets, with the form being reviewed at case management hearings as the litigation progresses. The point was made that companies would not expect to begin a major private project without a limit or guide to the costs to be incurred - why should parties to litigation be any different?
It was acknowledged that many law firms already use costs projection software, and lawyers were encouraged to adapt these programmes so that they can be readily used to complete the new costs management forms.
Bill of costs
In addition to the approved budgets, the final report recommended that a new form bill of costs be developed in order to make such bills more transparent, user-friendly and inexpensive to prepare, the view being that the current form is often difficult to understand, turgid and disproportionately expensive to prepare.
It was suggested that the best approach would be to link bills of cost more closely to lawyers' time-recording systems, so that parties can provide the court with either a high-level overview or a detailed breakdown of costs at any point in the litigation and at little extra expense. Although a suggestion by the district judges that lawyers' time records be used to assess costs directly has been rejected, this recommendation suggests that future costs assessments will be drawn much more from lawyers' original records than under the current system, whereby bills of costs are commonly prepared by a specialist costs provider, based on a review of the lawyers' files.
Although such a system would require a significant financial investment, it was emphasised that costs savings would be likely in the long term, especially if the bill of costs system could be integrated with the costs management software.
Integrated court IT system
Aside from the specific programmes and software needed to implement individual reforms, it was suggested that the civil courts should be moving away from the existing paper-based system and should seek to implement a joined-up electronic system to administer cases. This joined-up system would ideally provide each case with a dedicated space within the court's IT system. This would host the relevant court documents, as well those filed by the parties, and would be available to all parties and their respective legal advisers online.
Such a service should allow the English courts to remain competitive with other centres of international dispute resolution. The English courts have long been the forum of choice for litigating parties, and the lecture expressed the view that the regard for the expertise of barristers, solicitors and judges by those in international law and business should ensure that this preferred status continues. Such an integrated system would undoubtedly be expensive to implement, but the lecture stressed that its development is essential in order for the English courts to remain competitive, and also to complement the highly regarded advice and infrastructure already available to litigating parties.
The lecture began with a discussion of the "crisis of escalating costs" taking place across all jurisdictions, but particularly in common law countries. In an age of globalised cross-border deals, inevitably conducted by electronic communications, the volume of material relevant to a single dispute is often enormous. This problem not only affects global corporations engaging in international litigation, but is also increasingly faced by small and medium-sized enterprises and other smaller businesses, both in the United Kingdom and abroad.
Although the reforms focus on providing robust costs management within the court system, which the report regards as essential to preserve access to justice. In particular, the introduction of standardised directions, together with the use of budgeting and costs management software, provide the judiciary with key tools to control and monitor the costs incurred by parties to litigation.
Although some of the reforms will require more time for completion and may come at a significant initial cost, the longer-term savings should merit that investment. There is little doubt that lawyers can expect to encounter a more proactive - and in some parts automated - court system in the post-Jackson era.
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