Why is Jackson sitting in judgment on his own reforms

The Master of the Rolls, Lord Dyson recently announced the members of the Court of Appeal he has designated for the purposes of hearing appeals to the Court of Appeal arising from the Jackson Review reforms.

The judges will be himself, Lord Justice Stephen Richards (Deputy Head of Civil Justice) and Lord Justices Jackson, Davis and Lewison. The choice of Sir Rupert Jackson as one of the proposed judges raises the question of whether he should be judge in reforms that were of his own inspiration and review.

Any criticism of the appointment of a judge inevitably implies criticism of the judge himself. That is not intended here. Sir Rupert was given a task which was at least Herculean - some would say impossible - in attempting to reconcile the interests of the obviously competing litigation professionals and their obviously competing clients. He is to be commended on the way in which he managed the process, in particular in genuinely consulting all interested parties, and on his recommendations. If the result is that he has offended all litigators equally, that shows what a good job he did.

What may however cause concern is the perception that following his appointment to the panel of five Court of Appeal judges to deal with reform appeals, he will be seen to be sitting in judgment on his own reforms. Even where he personally is not directly involved in any appeal, there will be the perception that his membership of the panel will be influential.

There is clearly sensitivity about the legislator (and Sir Rupert in his capacity as chairman of the committee which gave rise to his eponymous reforms, is if not the actual legislator then very much the author) also being the judge and of the need for the separation of powers which gave rise recently to the creation of the Supreme Court, although many regarded that as an unnecessary and expensive tinkering with the House of Lords.

There is also concern about the prosecutor then acting as judge as Mr John Magill did in his role as District Auditor in 1996 with Shirley Porter and the Westminster "Homes for votes" matter. Another case was Primary Health Investment Properties Ltd & Ors v Secretary of State for Health & Ors [2009] EWHC 519 (Admin) (24 March 2009)

The argument will be put that Sir Rupert's work in promoting and implementing the reforms is over. The task of judging cases concerning those reforms should be left to others in the interest of total objectivity.

However: what the litigation industry desperately needs is greater predictability. When one views procedural and funding issues not from the perspective of the Court of Appeal or the Trial Judge looking backwards on a case that has gone wrong, but from the perspective of the adviser who on Day One is presented by his client with a morass of facts and documents and is asked to advise. What we practitioners need is to be able to predict with reasonable confidence the outcome of procedural disputes. Regrettably, and to the surprise of most of us, the Woolf Reforms in 1999 spawned satellite litigation over the next 14 years (and continuing...) beyond anything that anyone in the profession would have thought possible.

One has to think only of topics such as recovery of ATE premiums and success fees, and Part 36 offers, to appreciate how difficult it has been for Day One practitioners to advise. (Even at the trial and appeal stages the judges have not found it plain sailing, either.)

There is real concern that the Jackson Reforms will give rise to satellite litigation, even more than the Woolf Reforms - and presumably that concern lies behind the appointment not as originally recommended of two Court of Appeal judges as the panel, but of five. A further 13 years of unpredictable change would seriously undermine the quality of the litigation process and run counter to the laudable objectives of the latest reforms.

So, if Sir Rupert is in fact influential in dealing with appeals arising from the reforms, then we practitioners will at least have the benefit of knowing his views and we should therefore be that much better able to advise with confidence. On balance this factor probably outweighs the disadvantage of the overlapping of legislative and judicial functions.