Timetabling in the wake of Jackson and Mitchell

“But at my back I always hear; time’s wingèd chariot hurrying near.”

Andrew Marvell’s complaint has been a constant concern following the judgment last November in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, when the Court of Appeal held that the solicitors would not be entitled to recover their costs budget of more than £500,000 because the firm was late filing its budget.

High price

Many expert witnesses have responded by cutting their caseload. Mark Burton, a partner
at Kennedys, specialising in serious injury, says:
“I do think Mitchell will result in better compliance by practitioners, but it’s quite a high price to pay. If you judge it in the context of the aims of Sir Rupert Jackson’s reforms, which were supposed to lead to decreased waste and cost, it’s had exactly the opposite effect.

“Cases are taking longer because experts are now picking their cases and understandably building slack into their timetables. You also have to factor in the costs of satellite applications where a time extension is required.”

Burton predicts a shortage of expert witnesses: “I do worry about the medico-legal system –
it was creaking before Mitchell and now it’s teetering on broken. As for those trying to juggle a clinical practice and legal work, I can’t understand why they would want to concentrate on medico-legal now and I don’t see where the next generation is going to come from. Mitchell will be a further disincentive.”

The legal system has to offer consistency, but Burton warns: “Trying to keep pace with judgments which are applying Mitchell is like trying to nail jelly to a wall. There must be upwards of 50 cases, but there is huge inconsistency between them, although none of them has the shock factor of Mitchell itself.

“Some cases are applying it to the letter, while others are granting relief from sanctions in circumstances which seem to fly in the face of Mitchell. If Mitchell was going to be strictly applied in every case, I’d know exactly how to advise my clients, but at the moment I don’t.”

Expert witnesses are facing change management issues, just as solicitors are. In many areas, it must be admitted that experts’ working practices have scope for increased efficiency. Burton advises: “Don’t over-promise, be realistic, and give solicitors realistic advice about fees and timetables. We need to trust that the experts reporting are going to deliver for us.”

It can be more damaging for a hard-pressed expert to take on a case than to decline it, as Burton confirms: “If they are not available to take on a case, I respect that. “

Insidious behaviour

Disturbingly, there are reports that Jackson, reinforced by Mitchell, is changing behaviour in
an insidious and undesired way.

Jan Harrison, managing director of occupational therapy consultancy Harrison Associates, comments: “One effect of Jackson has been solicitors expecting us to omit or be vague regarding the dates of reports and documents we have relied upon. This is because other experts’ reports are being finalised very close to the court-imposed deadlines.

“Not being transparent about information we have relied on in our reports is in conflict to our obligations under Part 35 of the CPR.”

When Bond Solon asked expert witnesses for their comments after a year of Jackson, there were predictable grumblings from the ranks.

“Cases are poorly defended or argued because of time limits as well as cost limits. Medical experts are moving out of my area back into private or NHS work because of draconian time limits and fears of litigation against them if not complied with,” said one.

Another expert remarked: “I have observed
a substantial increase in requests from solicitors
to compile a preliminary short-form report”
(as opposed to a report which includes a full chronology and detailed facts section).

The system can seem frustratingly one-sided: “The court can’t have it both ways. They want to speed up the time, but aren’t giving me the information initially to be able to give them an accurate estimate.”

So why do people still take time out from
the day job to stand up for the truth as expert witnesses, by writing reports or even
undergoing cross-examination in court? Is it
the money? Is it the intellectual challenge?
Please drop me a line as we’d love to explore
this further. SJ

Mark Solon is the managing director of Bond Solon www.bondsolon.com

 

Mitchell from a costs lawyer’s perspective

Francis Kendall of Masters Legal Costs Services reports:

The Jackson reforms and particularly the strict application of CPR 3.9 post reforms by the courts have shaken up litigation. Where previously a pragmatic approach to timetabling and practice directions existed, this has been replaced with a far more draconian system, with the courts actively encouraged to flex their muscles in that regard.

There has always been scope for agreed and proportionate slippage on directions or deadlines in the past.  Now applications for relief from sanctions are a necessity (regardless of agreement between the parties). Such applications must have merit and must be issued expeditiously. This is more likely to increase the costs of litigation, at least in the short term.

There is an increased burden placed on the entire legal team in such circumstances. Previously, documentation was habitually perfected at the eleventh hour and, arguably, this practice is far from eradicated. From a costs perspective, and taking costs budgeting as a good example, there is the potential for a legal team running to tens of bodies (four lawyers, leading and junior counsel, experts, witnesses and a costs lawyer) all needing to provide meaningful input (of at least an estimate of their fees through to a notional trial) within a short space of time.  

Any delay in the provision of this information, or oversight resulting from haste, could easily result in non-recoverability of substantial fees.  It is also possible for any delay to leave a litigating party able to recover only court fees in accordance with Mitchell.

The perceived draconian result of Mitchell has been widely misinterpreted and tested within courts with several conflicting decisions on approach to relief from sanction applications. First, and fundamentally, there must be a sanction included within the CPR against which relief is sought.  No sanction, no need to apply for relief.

In addition, the test for relief has been diluted somewhat since Mitchell by a plethora of subsequent judgments. However, there remains both a real risk of non-compliance and the need for there to be genuine merit in support of any application for relief required.

The Association of Costs Lawyers through the Costs Lawyers Standard Board has already issued a requirement for costs lawyers to increase their professional negligence insurance and monitor closely their exposure to potential claims. There may come a point when it becomes inequitable for some costs lawyers or expert to act in litigation.

Recent draft directions orders being supplied to costs lawyers for the purposes of preparing costs budgets are opening with the stark notice in bold typeface: “Warning: you must comply with the terms imposed upon you by this order otherwise your case is liable to be struck out or some other sanction imposed. If you cannot comply you are expected to make formal application to the court before any deadline imposed upon you expires.”

The scope for any expert or litigator to stretch deadlines that could easily be unrealistic depending on the instruction or to charge beyond the initial estimate provided have become almost impossible and unlikely respectively.