Tips for dealing with post Jackson litigation In House

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Checklist, June 2014

Have you just been asked to deal with a dispute?

If yes, ensure you are familiar with the Jackson Reforms which were introduced into the Civil Procedure Rules in April 2013 and have led to a dramatic change in approach to the conduct of court proceedings. The courts have sought to provide guidance on how to apply the new rules, including the now infamous decision of the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 – and further guidance from the Court of Appeal is expected.

This checklist sets out our tips on how to approach litigation in this post Jackson era. For those of you who outsource the handling of your disputes, the list gives an insight into the key procedural issues lawyers now face when handling court proceedings.

Please note: this checklist is for guidance only and is not a substitute for legal advice. In each disputed case, the appropriate action for resolving your dispute will depend on the particular facts and law. If you are in any doubt about the applicability of any of the tips below or the legal issues involved, please contact Gwendoline Davies or Sue Harris whose details are below.

Change of approach to litigation

  • Consider advising the board of the strict new approach that is required to conducting litigation following the Jackson Reforms.
  • Inform the board and all relevant employees that their cooperation with all requests is needed and that all requests to meet time limits must be strictly adhered to.
  • Explain that:
    • you will need to review the claim, the factual, documentary and expert evidence likely to be needed and the potential costs in detail. This will likely result in the cost of the proceedings being ‘front loaded’ i.e. a substantial element of the costs being incurred early on;
    • failure to comply with the Civil Procedure Rules (CPR) and court orders and to meet deadlines will likely result in sanctions which could mean no costs recovery, a strike out of the claim/defence or an order disbarring evidence;
    • it is difficult to obtain extensions of time after the deadline has expired;
    • from the outset, all reasonable attempts must be made to settle the dispute whether by negotiation or alternative dispute resolution such as mediation. Parties are expected to collaborate with their opponents; and
    • settlement approaches from the other party must be dealt with and cannot be ignored.

Undertake an early review of the case

  • Review the evidence early on.
  • Consider whether you need a solicitor and/or counsel and ascertain exactly what role they will play in preparing the case.
  • Assess what evidence of fact is needed. How many witnesses are there? What evidence will they give? Are they available and willing to give evidence? Will they be available for the trial? Are they briefed on the need to comply with your requests for information promptly and the consequences of any delay?
  • Assess what documentary evidence exists. What is relevant to the claim? What electronic documents exist? Where are they located? Who curates and/or holds them? How will you access and process them? Do you need eDisclosure experts to assist in this exercise? Beware when collating ‘e-documents’ that it may be important to preserve the metadata of the document.

Costs Budgets

  • Costs Budgets are required in multi-track, Part 7 claims under £10m (from 22 April 2014) and are discretionary over that threshold.
  • Prepare the Costs Budget using Precedent H. Do you need expert help? Don’t forget to add in contingencies and set out the assumptions on which the budget is based. Ensure the correct statement of truth is included and signed.
  • Take care over your Costs Budget. You are unlikely to be able to amend it later unless you have included a relevant contingency. There is already a precedent for a Costs Budget being used wholesale at assessment to award costs.
  • File the Costs Budget on time – check the CPR.  Being late will bring sanctions – you might find yourself only able to recover court fees under the Costs Budget (although pre-action costs are not affected).
  • Throughout the litigation, closely monitor your expenditure as against the Costs Budget.
  • Monitor the disbursements too – including counsel’s and expert’s fees. Divide these costs into stages and combine with your budget. Make sure counsel and experts have been told to warn you in advance if there are likely to be any changes in the figures previously advised to you.
  • Link your time spent to the Costs Budget, stage by stage – and set up alerts for when the actual costs are nearing the budget limit. Make an application to the court for an increase (and have a good reason ready) as soon as it looks like you might need to go over.

Procedural issues

  • Compliance – with court orders, practice directions and the CPR is essential. There are more forms to fill out than ever before. Make sure you are realistic when setting timetables for directions so that you do not put yourself under unnecessary pressure.
  • Treat all court orders as if they are unless orders.
  • When agreeing directions and timescales, be sure that you can meet the proposed dates. They are unlikely to change.
  • If you need more time to meet an order, rule or practice direction, you can agree an extension of up to 28 days with your opponent provided that there is no detrimental effect to your listed court hearings. The agreement must be in writing and made before the expiry of the relevant period. (See CPR 3.9).
  • If you are asked for an extension – be reasonable in your response. Also be aware that some extensions by consent might need to be ratified by the court.

What if you cannot comply with an order, direction or rule?

  • If you think you might be unable to comply – act immediately. Be proactive.  Ask your opponent for an extension. If it is refused, apply for an extension or a varied direction before the deadline.
  • Bear in mind that the following are not good reasons for non compliance:
    • pressure of work (delegate, take on more staff or outsource the work);
    • system or management error (review your diary systems. Are they effective?)
  • Avoid being in the position of having to apply for relief from sanctions.  If you are, consider advising the board of the likely outcomes.
  •  Applications for extensions of time in hindsight are more likely to be treated as an application for relief from an automatic sanction.
  • Be reasonable when asked for more time or a directions variation by your opponents.  Engage with them – and if you cannot agree, make sure you have a good reason.

What if you have received a sanction?

  • Act immediately.
  • Check whether you need to appeal the order giving the sanction – or apply for relief from sanctions (or both).
  • Do not delay in making the application for relief.
  • Review whether the breach can be considered trivial and assess whether there was good reason for the breach which triggered the sanction.
  • Consider preparing the board by explaining the consequences of the sanction and the likelihood of obtaining relief.

The new tactics

  • Do not use an opponent’s error to your advantage where a reasonable response is possible on the facts.  You will be given short shrift by the courts and might end up with a costs penalty.  (Caveat: unfortunately, until the Jackson Reforms settle in, it may be difficult to decide what is a good point to follow up and what is not.)
  • The rules include lots of scope for new – acceptable – tactics. For example, the provisions of CPR Part 36 have been strengthened.
  • Scrutinise your opponent’s costs budget – what can you glean from their approach?