Lawyers and judges should be "forced to love costs management" in the same way that Rousseau said mankind has to be forced to be free, Lord Neuberger has urged.
Speaking at the annual Personal Injuries Bar Association conference, the Master of the Rolls said that greater judicial consistency in the approach to cost and case management was needed, which would embed “a more properly disciplined, almost managerial, approach to the conduct of litigation by lawyers”.
“Simpler, more straightforward and consistently applied procedure carried out by a judiciary, properly equipped to take a more interventionist case management role and a legal profession also committed to such a culture will, I am sure, have a positive effect,” he said.
What was needed to achieve this goal was clear guidance that the senior judiciary would stick to so that a consistent approach to case management could develop across the entire judicial piece.
“Perhaps lawyers and judges, like mankind as Rousseau saw it, have to be ‘forced to be free’ or in our case forced to love costs management,” he said.
Implementing Lord Justice Jackson’s recommendation that an experienced district judge sit as an assessor with the Court of Appeal on case management appeals would, Lord Neuberger suggested, allow the court “to draw on, and in due course to acquire, the relevant experience… of a judge well-versed in the day-to-day mechanics of case management”.
Such guidance, he added, “could then reflect, perhaps more so than it has done in the past, the realities of life in the county and High Court, while properly shaping its future development”.
“It seems to me that in this we have a clear example of how a consistent approach by the Court of Appeal can shape case management to enhance both the efficiency and economy of litigation,” he said, adding that such an approach would “bring about a change in litigation culture”.
He was at pains, however, to point out that “as with all cures we must take care with it. Interventionist case and costs management must not become excessive… it must not become a cause of the problem it seeks to help resolve i.e, a new cause of excessive cost and delay”.
He continued: “We have perhaps not taken a sufficiently rigorous approach to proportionality,” adding: “That is not surprising. It is a concept which, in the field of civil procedure, is still relatively new, and it is much easier to talk about in theory than it is to apply in practice.”
Referring to Jackson LJ’s view that disproportionate costs do not become proportionate simply because they were ‘necessary’, Neuberger said: “Very many different types of cost can be said to be necessary to bring or defend a claim… But such necessary costs are, as we all should well know by now, balanced now by an equal commitment to what Woolf described as procedural justice; that is to a fair, just and properly accessible justice system for all litigants.
“Procedural justice thus goes beyond the immediate concerns of individual litigants: it goes beyond what is necessary to achieve a decision on the merits in any individual case. In this way it is outward looking while necessity is inward looking.”