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The Jackson changes are BIGGER than Woolf…it’s hard to see that anyone will be untouched

07/02/2013

That was one of the opening lines from Professor Dominic Regan in an MBL seminar in Manchester yesterday: “The Jackson Reforms: are you ready for April?’.

A large group of attentive Mancunian lawyers listened to Professor Dominic Regan explain some of the latest developments in the implementation of Lord Justice Jackson’s costs reforms. His informed and insightful run through all the major changes was peppered with advice and a number of warnings. There were some pointed one liners in which he managed to distil the essence and aims of the reforms: the need to ensure that costs are kept proportionate as well as to ensure justice. Some of the more stark quotes are set out below.

No one is ready for the April reforms. How can we be – much of the detail has yet to be published.  Professor Regan’s talk only served to underline how much work lies ahead.

Verbatim quotes from the seminar are in italics.

Professor Regan’s views

On the enormity of the changes ahead

The changes are BIGGER than Woolf… it’s hard to see that anyone will be untouched.’

On the amendments to the Overriding Objective

Ensuring the proportionality of costs is now on the same level as justice. No longer can you just do the right thing… you’ve got to think about the cost.

On Experts

Judges are being prompted to consider/push for joint single experts.

On how judges will approach their costs management duties

Judges are being encouraged to be more interventionist, more sceptical, more aggressive, more interventionist…

On Disclosure

The changes herald ‘the abandonment of standard disclosure as the norm.

On Damages-Based Agreements

This is a massive change. We’d call DBAs ‘contingency fees’. They are legitimate. You act for a client in return for a cut in the winnings [at a maximum of 50%]. [The rules] do not allow a hybrid arrangement… it’s all or nothing.

There’s going to be no legal duty to send the client away for independent advice before you enter a DBA – but you might want to do so.

On CFAs

A massive change – the greatest. We’ll still have them post April – but recoverability of the success fee ends.

There will be an increase in general damages of 10% to compensate for the loss of the success fee.

On Part 36

A Claimant making a good offer to settle will see their damages award enhanced by 10% on awards up to £500,000 and by 5% over that figure up to £1m.

Suggested tactic: if your client has made a Part 36 offer  pre 1 April 2013, consider remaking the offer on or after 1 April to allow your client to benefit from the extra damages available after that date.

On Sanctions for not complying with Court Orders

I anticipate that solicitors will be sued more often in negligence than ever before if claims are struck out through their non-compliance with a court order.

On the new test of proportionality of costs

The new proportionality test demands that, at the end of a trial, you tot up the total, then step back and ask a final question:  does this look proportionate to the claim? So even if there is nothing wrong with the bill of costs [i.e. the component parts are reasonable], the judge can still say that’s too much and lop off a chunk.

On Late Amendments to Pleadings

The Court of Appeal has transformed its approach to late chopping and changing.  You can’t amend at trial: it will be nigh on impossible. Justice is no longer the only criteria: proportionality of cost must also be considered.  7 months before trial has been held to be too late to obtain an amendment.

If you want to change things, move at the earliest opportunity. Leaving anything until trial is suicidal.

On Budgeting

It’s an expectation not an obligation to budget…but be warned:  if you don’t fill in the costs budgeting form, it will be presumed that you won’t be claiming costs.

The court can refuse to approve a budget, but – if they do, that’s a clear indication that you won’t recover costs at the end.

If the final costs figure comes in within budget, the Courts are likely to say have your budgeted figure as your costs to save on costs assessment.  Therefore – the costs budgeting hearing is very important. Prepare well for it. Be prepared to challenge your opponent’s figures.

Golden rule:  watch your budget all the time. Constantly.

Professor Regan promised more insights over the next few months on his blog. I for one will be taking the occasional look.

The contents of this blog are for information only and do not amount to legal advice. The writer is not a practising solicitor.

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