1. Jackson reforms: taking stock

In addition to the headline reforms relating to conditional fee agreements (CFAs), after-the-event (ATE) insurance and contingency fees, which are to be implemented through primary legislation currently before Parliament (see our e-bulletin of 21 June 2011), progress is ongoing toward the implementation of various other recommendations put forward in Lord Justice Jackson's final report on civil litigation costs and funding.

Some of the developments are likely to be of interest to commercial clients. These include the following:

  • The legislation currently before Parliament proposes an additional sanction (equivalent to 10% of damages) for defendants who fail to accept a claimant's reasonable Part 36 offer. A new Civil Justice Council working party is considering how this additional sanction should operate in higher value claims and non-monetary claims.
  • CPR Part 36 is to be amended with effect from 1 October 2011 to reverse the effect of the decision in Carver v BAA plc [2008] EWCA Civ 412 and increase certainty for those assessing Part 36 offers.
  • A sub-committee of the Civil Procedure Rule Committee has been appointed to take forward Lord Justice Jackson's recommendation for a "menu" of disclosure options for large commercial claims and other cases where the costs of standard disclosure are likely to be disproportionate.
  • An amendment is to be put before the Civil Procedure Rule Committee shortly to implement Lord Justice Jackson's recommendation that parties seeking permission for expert evidence should provide the court with an estimate of the costs of that evidence.
  • An amendment to CPR 3.9, which sets out the court's discretion to grant relief from sanctions, is being considered, with the aim of simplifying the rule and clarifying that it will be the exception to allow relief for non-compliance.
  • A final version of the voluntary code of conduct for third party funders is expected to be agreed by the end of this year.
  • Pilots of the "costs management" procedures recommended by Lord Justice Jackson are being expanded.

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