Meet the Judges – 17 June 2014 – Notes
A report from Gordon Exall, Zenith Chambers
JACKSON ONE YEAR ON
On Tuesday evening (17 June 2014) Leeds Law Society held a “meet the judges” evening when practitioners met local judges and court staff to discuss issues arising out of the implementation of the Jackson reforms.
14 months on – an update from the Judiciary about how Jackson is working from their point of view
General Overview from the Judges
There had been initial problems with Part 8, specialist claims over 2.5m and Precedent H file (date of filing).
The Mitchell decision was a game changer. Following Mitchell there have been a number of important decisions supporting the robust case management decision. The consequences have been an increased need for applications for extension of time. There has been a sharp increase in the number of opposed applications for an extension of time and relief from sanctions.
Effect on Costs – QOCS: no real incentive to get a real costs budget, D is unlikely to recover it. Claimants are inflating costs budgets to counter likely reduction. People are still feeling their way and adopting defensive position.
Extension of time for Witness Statements – Courts have seen an increase in applications due to fear. It is hoped that the recent rule change (CPR 3.8) will help as parties can now agree to an extension.
As the law stands it is understandable for parties to take technical points, they have sometimes achieved a great tactical advantage. However, there is a difference between this and exploiting the rules to take advantage. The latter must be avoided to avoid undermining professional relationships. Judges want to encourage the ‘what goes around comes around’ principle, if you allow opponents flexibility, you will receive it when the shoe is on the other foot.
In this respect the courts are looking to lay down parameters of what constitutes fair play.
The Panel responded to questions submitted in advance:
1. From a practitioner point of view how do people feel the framework impacts on market so far – are firms becoming more inventive in their funding arrangements?
There had been a downturn in cases, following a peak in April last year. The reason for the peak was obvious.
2. Have you noticed less cases being issued and how has it affected those where LIPs are involved?
The PSU has assisted 3757 LIPS over last year (42% of those were family matters with the rest being made up of housing issues and money claims).
3. Costs budgeting – Proportionality definition – do the Judiciary anticipate more guidance on what this means?
No definition other than 44.35 on purpose, no intention to give any further definition.
Guidance on initial CCMC – Need very good reason to depart from the rules and deal with case management and costs budgeting separately. If you feel there is a reason why this should be so, make an application.
4.Costs draftsmen speaking at CCMC?
No problem as long as one person speaking at a time.
Courts are seeing an increase in counsel and costs draftsmen attending court to explain costs budgets. In the Judges’ view the solicitor should be doing this as the solicitor is best prepared in terms of the facts.
5.What proportion of Costs Budgets are being agreed?
Not enough – encouragement to try and reach agreement – consider it with “spirit of cooperation” in mind – you can agree a phase if not the whole thing.
Where both parties had filed late the best course of action was to agree budgets to avoid being “Mitchelled”.
6. Are there any planned amendments to allow pre-action costs to be considered at CCMC?
No – that’s the point.
7. Contingencies and prospective applications
There has been a concerning increase in size of Precedent H forms as a result of growing numbers of contingencies and assumptions being provided for. This is to be discouraged.
If it is a contingent cost (e.g. experts) – make an application and it will be dealt with then.
8. Any multi-track cases not suitable for Costs Budgeting?
Very large infant approval cases involving difficulties in prognosis for future
Issues of liability – simple assessment is not appropriate
9. Time taken to list applications.
There is an increasing reluctance to agree Costs Budgets – if more are agreed cases can be listed quicker.
10. Could judges adopt a more flexible approach to order to be made?
Looking at coming up with “CCMC lite” bundle requirements over the next few days. There will be less onerous and reduce need for summaries. They are also considering whether there should be a specific order to consider agreeing budgets.
Envisaged this will apply to smaller multi-track cases eg up to £100,000.
New requirement to file composite costs summary in a format which is self calculating so can it be amended during hearing.
11. Use of technology
Leeds CC currently has 19 email addresses – looking to reduce them (review by end of July).
12. Part 36 offers
Provisional assessment of costs and lower offer then accepted
13. Methods re e-filing
Leeds CC can currently accept emails up to 3MB (around 30 pages). This may increase soon.
Fax is also up to 3MB (around 30 pages).
14. Delay in courts – how is this affecting customers and public perception considering the cost of court fees?
list general application 1st July
More substantive hearing 22nd July
14 days for orders
15.Try to do work in advance. Unforeseen things happen so plan for this. If some unforeseen circumstances arise writing a letter to the court will not suffice. You must make the appropriate application with the appropriate fee.
16. Track allocation – where one party thinks the case should be allocated to multi track and the other says fast track the costs thrown away will be paid by the party losing the point on allocation.
17. Strike out/summary judgment – if likely to be a perception of bias, the time for raising is at the pre trial hearings.
Leeds CC are currently reviewing listing procedures and hoping to streamline.
They are moving towards a “duty judge” system with one judge dealing with two lists per week of urgent applications.
Leeds CC have increased workload of around 5%. If your correspondence is urgent you must mark it as URGENT.
DJs at Leeds CC are reduced to 6.6 at the moment – they have put in bids for 3 more to be in post by October.