View from the bench | Implementing Jackson for the good of clients

In civil law, in the county courts, following the broad acceptance of the Jackson proposals for reform, the following provisions are due to come into effect from the 1 April 2013.

The small claims track limit will increase from £5,000 to £10,000. Any personal injury claim will remain limited to £1,000 but there are proposals under consideration to increase this in the future. Remind your clients, however, that the service is not free. Issue fees, allocation fees and hearing fees are considerable.

Conditional fee agreements will still be possible but you will not be able to recover the success fee and ATE insurance premium from the losing party. Any success fee will have to come out of your client’s damages and limited to 25 per cent of the amount recovered. A new creature is being created, called damage based agreements, under which a percentage of the damages recovered (limited to 25 per cent of personal injury damages and 50 per cent of other claims) can be taken for costs.

Allocation questionnaires are going. A court official will send out a notice of proposed allocation together with a directions questionnaire. In fast track and multi track, the parties must file directions, agreed if possible, based upon specimen directions. In multi track cases, these can be found at www.justice.gov.uk/procedure-rules/civil.

The court will be able to limit disclosure to the production of documents which are relevant to the issues. Standard disclosure will no longer be the default mode. Directions can also be made limiting or identifying the issues which are to be addressed in witness statements together with their length and format. ?In complex multi-track cases, docketing of cases to named judges should aid judicial continuity and consistency of approach.

New costs rules are being introduced. Fixed fast-track costs have been deferred. However, there is a new definition of proportionality at CPR 44.3(5). Various interpretations are possible but the general view is that costs reasonably and necessarily incurred may have to be reduced further if not proportionate. The fact is that litigants must be warned that, even if successful, they are unlikely to recover all the costs properly incurred in pursuing their claim.

For all cases issued after the 1 April 2013 which are allocated to the multi-track, the court will need to approve the costs budgets of each side. These budgets will have to be filed in time for the first case management conference and must be in accordance with the new PD 3E. They must follow Precedent H which is annexed to the PD, in landscape format with at least 12 point type face and verified by a statement of truth signed by a senior legal representative of the party. The parties will be expected to operate within the budgets.

Bills of costs up to £75,000 will be provisionally assessed in the first instance by district judges as an item of box work for which time will be set aside by court listing officers. There will also be a 10 per cent increase in general damages to be awarded, cost capping orders, and qualified-one-way-costs shifting.

As always, the devil is in the detail. As solicitors and lawyers providing advice, careful consideration of the new rules are essential. A final word of warning: a tougher CPR 3.9 is being introduced. It is intended that relief from sanctions will be less readily available and district judges are encouraged to be robust. Lack of prejudice may on its own be insufficient.

I do hope that solicitors will embrace these changes with enthusiasm. IT already provides huge changes in the way we work. Advocates regularly email in to me from their iPads complex orders for my approval. Many litigants may have access to the internet but they must be able to look to solicitors not just to fight their corner, but to explain the process, manage their expectations, advise over their problems and assess the risks. There are still too many cases coming before us where the court process itself has been unnecessarily damaging and often financially crippling. I am generally full of admiration for many of the solicitors and counsel who do appear before me. I know how difficult their job is. At the end of the day, however, you are the experts and your clients rely upon your skill, knowledge and expertise.