The Jackson reforms are now a little more than a year old. The changes to the way in which litigation has to be run have caused difficulties for all parties to litigation.
There are numerous war stories about the application of Mitchell. Many otherwise meritorious cases have been brought to a sudden end following a failure which might have been seen as innocuous in the recent past.
Whatever your views about the Jackson reforms, it is clear that the rules are here to stay. Unlike the swift judicial distancing apparent almost immediately after the Woolf reforms came into force in the 1990s, this time the Court of Appeal is supporting the principle behind the Jackson reforms. Both from the bench, and off it, senior judges have made it clear that litigants and their lawyers have to learn how to run cases in a Jackson-compliant way. If they do not, no-one should expect any judicial sympathy.
One impact of the reforms is that litigation procedure has now attained an importance way beyond what is justified, and that it has done so at the expense of justice. In short, the parties to the litigation are the ones to suffer, or the insurers of law firms.
However, the brave new world is here to stay, but is it working in a practical way? Our experience suggests not, and it is unfortunate that the predictable increase in satellite litigation was not foreseen by the Jackson reforms, so as to ensure that courts were properly equipped to deal with it. Put another way, implementation has been a weakness, in terms of training of the judiciary as well as resourcing.
For law firms, it is important that the court is able to deal with things promptly. There is an irony however that while the parties are being sanctioned for marginal delays (sometimes a matter of minutes), the proverbial black hole of the court postal system seems to have grown since April 2013, not reduced. As such, the practical hurdles for law firms dealing with litigation have grown significantly.
We have seen several notable examples:
- The limitations on the ability to file papers electronically or by fax. There is no single practice, and variations between courts are common . We have seen rules which limit electronic filing to a modest number of pages, to single attachments, or to small file sizes. All this makes sense but sometimes documents are lengthy simply because they need to be. Nor do the courts have the resource to respond to e-mails. Since papers now have to be filed by a particular date, with draconian sanctions if they are not, it is nerve-wracking to e-mail a defence and to have an automatic response (if you get a response at all) saying that it will be looked at within 5 days but if the attachments break that court’s local directions it will not be accepted. How do you know if you are in breach or not?
- The increased use of the online money-only claims system for issuing proceedings compounds the problem. If the parties need to agree an extension of time or another application is needed, it can only be sent by post since it needs a cheque with it. If the document exceeds their size limits you cannot fax or e-mail it, even if the payment follows by post. Nor can you deliver it by hand. Post is sent to a building in Salford without a public reception and where the PO Box is locked inside the building so you cannot even deliver it and prepare an affidavit of service. Therefore, law firms need to be ready days before a deadline simply to guarantee that procedural steps are complied with. If you are instructed a week after service that gives virtually no time to respond.
- Courts have also been swamped with applications and the impression from the outside is that they are sinking. For instance, we have a matter in which the parties were waiting to hear if a trial would take place in 21 days time. All parties wrote to the court about it but were told that there was a 15 day turnaround to read any letters so none of the parties knew whether to prepare for trial or brief counsel. The only way to expedite the process, we were told, was to ask a judge. The same turnaround time exists to get an urgent request to the judge. This is frustrating for all stakeholders in the litigation.
- Even where the parties agree a particular approach, their inability to get a timely response from the court is leading to technical points being taken, or uncertainty which prevents the merits of a claim being considered properly. A law firm’s ability to engage with their opponent, and to agree sensible steps, has taken a dent.
The concern most law firms are likely to have is that, when faced with litigation, energy (and cost) has to be focussed more than ever before on the litigation itself, and procedural aspects, rather than what is most important to the clients – dealing with the issues and resolution. The pendulum has swung too far, and it is not easy to see how these changes have made litigation more cost effective. Perhaps the aim was simply to stop litigation occurring at all, which in itself is no bad thing and will encourage greater pragmatism via the use of Pre-Action Protocols.