Post-Jackson litigation: torn both ways

The introduction of the civil procedure rules (CPR) on the 1st April 1999 was a watershed in case management. Control of civil cases passed to judges and it was the district bench who primarily implemented the reforms. In so doing the time for listing cases tumbled. Gone were the days of waiting years for a trial.

Sadly these reforms did not successfully control costs and robust decisions of the lower courts were not supported on appeal. This resulted in the Jackson reforms implemented on the 1st April 2013.

The family procedure rules (FPR) came into force from 2010, following closely the CPR. They have been overhauled by the implementation of Public Law Outline (PLO) which is the subject of a national pilot from the 1st July 2013.

The CPR overriding objective is replicated in the FPR save for the recent amendments to the CPR requiring stricter compliance with rules, practice directions and orders. The effect of non-compliance in civil cases is often fatal as slippage is not likely to be tolerated.

Relief from sanctions

Relief from any sanction for non-compliance is not likely to be given. In care cases, as the care order has to be renewed monthly, the certificate requesting renewal requires confirmation of compliance thus preventing slippage.

In civil cases it is 27 to 30 weeks for a fast-track trial with small claims and multi-track cases being heard when they are ready. This contrasts with care cases, having to be dealt with within 26 weeks of issue. The shorter timescale is about to become statutory.

In civil cases, other than personal injury, the Jackson reforms have reduced the requirement to provide extensive disclosure. The intention is to reduce the costs of disclosure. There is no corresponding requirement to provide disclosure in care cases.

Expert evidence

Under the CPR any party wishing to rely upon expert evidence requires permission from the court, applying the overriding objective. The PLO and president's guidance limits expert evidence in care cases to that which is necessary, a stricter test.

Both the Jackson reforms and the PLO emphasise the need for case management by the same judge. It is recognised that this reduces time and ensures consistency.

Whereas multi-track cases often have pre-trial reviews, the same does not generally apply to small and fast-track cases. In contrast all care proceedings are listed for an Issues Resolution Hearing to consider all issues prior to trial.

Pushed back

The introduction of cost budgeting in civil cases has already led to an increase in the time for costs and case management hearings. This will lead to delay in cases being tried. In contrast, the strict time limit in care cases is resulting in civil cases being pushed
further back to facilitate
family hearings.

SJ