It is easy to become caught up in the daily developments of litigation, even more so now because of the wealth of materials that are distributed. The aim of this note is to take a measured view of developing trends in civil litigation.
It is easy to become caught up in the daily developments of litigation, even more so now because of the wealth of materials that are distributed. The aim of this note is to take a measured view of developing trends in civil litigation.
Adjusting pleadings
The days of late chopping and changing are over. In recent memory, most practitioners and their clients can think of actions where a casual request to alter drastically a case was granted, even at or after the commencement of trial. The judiciary has made it clear that this is no longer tolerable – recognising that such adjustments are invariably disruptive to proceedings (and costs management). By way of example, Lord Justice Jackson refused to allow a disappointed claimant a new expert where the current one had a change of heart. The trial window was fixed and disruption was unacceptable (Guntrip v Cheney Coaches Ltd [2012]).
An even more extreme example is provided by British Gas Trading Ltd v Oak Cash & Carry Ltd [2016]. The defendant was two days late filing a modest document - a trial questionnaire. Had an immediate application for relief from sanction been made it would have certainly been granted. However, the delay of over a month in asking the court to forgive was fatal and so the defendant was landed with an adverse judgment for more than £200,000.
Striking out for abuse of process under Part 3.4 of the Civil Procedure Rules was the penalty applied by Master Bowles in Solland International Ltd v Clifford Harris and Co [2015]. The claimant had failed to file a listing questionnaire due some 31 months earlier. The defendant applied for a strike out of proceedings and the claimant then served the questionnaire and sought relief from sanctions. The court held that no automatic sanction for this breach existed. However, relying on the court’s ability to make whatever order it felt appropriate, it decided that the chronic failure to progress the matter was evidence of a dilatory attitude, which was unacceptable. The delay, including “warehousing the litigation”, left the proceedings in “indefinite abeyance”. Accordingly, the large professional negligence claim (put at £4 million), was dismissed (as was the subsequent appeal).
Alternative dispute resolution
The judiciary has begun to push alternative dispute resolution (ADR) vigorously. A party unwilling to engage in the process now looks vulnerable. Beware Laporte and Christian v Metropolitan Police [2015]. The defendant won outright at trial. Even if there had been a mediation - which the defendant had refused - the court declared it was by no means certain that it would have resolved the dispute. Nevertheless, the defendant was denied one third of its costs.
Therefore, efforts to avert a trial are seen as paramount. The fact that the defendant had refused to engage in ADR warranted what many might consider an unjustified penalty.
Receiving parties are now proposing ADR when it comes to the quantification of costs payable. Costs judges have penalised defendants for rejecting the proposal, typically by giving the claimant indemnity costs from a date shortly after the suggestion was made. Any mention of ADR by an opponent should be addressed and not ignored. It may well be that the proposal is premature. Say so and indicate a willingness to consider the exercise at a realistic juncture.
Acting honourably
Challenges upon technical points, long seen as fair game, are now frowned upon. There is a new emphasis upon the need for litigators to act honourably and constructively towards one another.
Mr Justice Leggatt demonstrated this approach in Summit Navigation Ltd v Generali Romania [2014]. The failure to provide security at 16:00, which was delivered at 10.01 the next day, was insignificant. Indeed, the defendant (the innocent party) was ordered to pay costs for having had the temerity to take the point. It was a waste of court time and ought never to have been pursued. What is interesting is that the guilty party ended up receiving significant costs from their defaulting opponent.
Therefore, it is now crucial to consider whether it is reasonable to resist actively an application for relief. To do so in the light of a minor breach could well attract the opprobrium of the court. A passive stance or letter of consent may well be the safest course unless the breach is truly disruptive and/or substantial.
Proportionality bites
Those who regularly pay out costs will be enthusiastic about the recent application of proportionality, which has had an unexpectedly harsh impact upon recoverable costs. The test is applied after reasonable costs on the standard basis have been identified. The judge will then step back and, if justified, make a further adjustment to arrive at a figure perceived by them to be proportionate to the value, complexity and importance of the case.
It is only in the last few months that the test has bitten in reported cases. We have seen the amount of standard costs cut by 50%, 58% and most recently in a High Court family case, by 90%. The seemingly arbitrary approach is generating tremendous uncertainty and will surely be considered by the Court of Appeal.
Comment
Despite the Jackson reforms having been introduced back in April 2013, we remain surrounded by uncertainty. Such uncertainty is compounded by the impending (but unconfirmed) ‘whiplash consultation’, which will seek to change the small claims limit and alter the basis of recoverability of compensation. The Autumn Statement (scheduled for 23 November 2016) also presents the potential for a change in policy direction.
Additional recommendations for reform have been made by Lord Justice Briggs, which, if implemented, might relieve (or redirect) some of that uncertainly. His vision for greater use of technology in the justice system echoes Kennedys’ commitment to innovate wherever possible in order to alleviate the need for instructing lawyers. This is a vision that Briggs LJ embraced when we met him to demonstrate the Kennedys’ Toolkit – allowing reference to both KLAiM and Cybersettle in his final report, both of which form part of the Kennedys Innovations Toolkit.
Similarly, the arrival of a new Master of the Rolls might herald a shift in approach. For example, costs management is not universally embraced and many judges despise the exercise. Sir Rupert retires in March 2018. His legacy might not be sustained.
In the meantime, the above review is a stark reminder that all of us working in the litigation space must conduct ourselves diligently.
Co-authored by Richard West and Dominic Regan, Professor of Law and adviser to Lord Justice Jackson.
Related item: Kennedys Innovations Toolkit
Read other items in the Personal Injury Brief - October 2016
