Background

The Ministry of Justice (MoJ) consulted in November 2010 on the implementation of a package of measures recommended in Lord Justice Jackson’s Review of Civil Litigation Costs. Following the consultation the Government’s response paper (published on 29 March 2011) set out the measures the Government intended to take forward. The response indicated that the MoJ intended to work with stakeholders to develop the detail of the proposals.  

Objective

A Civil Justice Council (CJC) expert working party has now been set up to help develop practical proposals to assist with the implementation of secondary legislation (regulations, court rules) in the following areas:

  1. Qualified one way costs shifting – atypical cases and behavioural aspects.
  2. Introduction of an additional sanction/reward under Part 36.
  3. The detail of the proportionality test – content of a Practice Direction – examples of when the test should not be applied.  

Issues Considered

The working party will consider the key options and issues raised by respondents to the consultation and identified in the response paper and any additional issues identified as a result of members’ own experience.

The working party will not revisit the policy objectives set out in the Government response but will focus on the practical measures which may be required to give effect to the proposals. The detailed drafting of any secondary legislation will be a matter for the Civil Procedure Rule Committee and/or Government lawyers and is outside the working party’s remit.

The working party will develop and prepare papers setting out realistic optional solutions in each of the three areas and advice on the pros and cons of each option by the end of September 2011.

Forward Plan of Work

It is envisaged that the CJC will convene a workshop to be attended by a range of experienced practitioners. The purpose of the workshop will be to provide feedback on MoJ/CJC developed proposals for secondary legislation on qualified one way costs shifting, Part 36, proportionality and possibly other areas.

The workshop is expected to take place towards the end of October 2011.