Total Pageviews

Monday, 24 March 2014

Concerning Jackson, Justice and an Eleusinian Mystery!

We are approaching the first anniversary of Lord Justice Jackson’s reforms of our civil justice system. Any reader of this blog will know that I have not been an enthusiastic supporter.

Today sees the first speech from the architect of the reforms at the Civil Justice Conference. He seems to acknowledge that the response is largely negative. But will say we will adjust in time. It is not entirely clear whether that is a prediction or an order. In view of some recent judicial decisions it is probably the latter. He says that the criticisms do not reflect a fair cross section of opinion. I have yet to meet anybody who is a fan of the ‘reforms’. 

Jackson will say that the objections really amount to no more than lawyers protecting their own interests –

 'Every stakeholder group seems to perceive the public interest as residing in a state of affairs which coincides with its own commercial interest,'

But the objections go far wider than this. It is a genuine concern that a victim of an Accident or of Clinical Negligence stands to lose up to 25% of part of their damages under the new rules on Conditional Fee Agreements. This represents a huge windfall for the insurance industry at the expense of victims. The commercial interests of lawyers are not directly affected. It is an issue of justice and not just money.

He also predicts that the cost of litigation will reduce. The evidence so far is that costs are going through the roof. Cost budgeting itself is becoming an expensive exercise. We are seeing a deluge of satellite litigation arising from the decision in Mitchell v News Group Newspapers Ltd. Litigators are spending more time looking at their diaries through fear of the catastrophic consequences of missing a deadline by a day –

He comments that litigation is a process and not an Eleusinian Mystery – apologies for the link but I thought it might save you a trip to Google to find out what on earth it means. To be honest I am not much the wiser. The only real myth here relates to the existence of a compensation culture.!!

We know that something is badly wrong when the Master of the Rolls can say -

There now has to be a shift away from exclusively focussing on doing justice in the individual case”. 

There are some glimmers of hope. Jackson himself seems uncomfortable with some of the judicial excesses following Mitchell and says that the parties should be able to agree reasonable variations in the court’s timetable. The changes are certainly here to stay but we can hope that new editions of the rules will see a softening in the courts’ approach. 

I have to say that there were some words of comfort from Lady Hale in the recent case of Dunhill v Burgin. This was not a Mitchell type case but she did say – ‘But in this
court we have to do our best to arrive at the right result and thus to allow
all relevant arguments to be deployed before us unless this would be unfair to an
opposing party.’

We haven’t heard the word fairness very much lately so maybe some cases need to get before the Supreme Court before sense will prevail. 


No comments:

Post a Comment