The effects of the Jackson reforms and fallout from of the
Mitchell ruling continue to provoke fierce comment and debate.
PremExtra discusses the latest developments.
A trio of major cases linked to the Mitchell ruling have generated
substantial media coverage, with Master of the Rolls Lord Dyson
hearing consecutive appeals.
The Law Society Gazette reported how media
attention intensified when Dyson was joined on the bench by Lord
Justice Jackson.
The highly unusual triple hearing aims to clarify the
post-Mitchell situation on case management rules. It means the
Court of Appeal is hearing the cases of Utilise TDS Limited v
Davies; Decadent Vapours Ltd v Bevan & Ors; and Denton
& Ors v TH White Ltd & Anr as part of the same
process.
All three cases are linked to arguments resulting from the
Mitchell judgment last November, when Dyson refused relief from
sanctions against the submission of a late costs budget.
The cases are intended to give clarity for lawyers dealing with
the implications of the Jackson reforms last year, which introduced
new case management rules.
30 minute delay laughed off
The hearings did not get off to the most auspicious start, with
the irony of a 30 minute delay not lost on lawyers ready to argue
that judges were being too harsh on missed deadlines.
After the hearing got under way, Dyson said a judgment in each
case is likely to be reserved and warned lawyers to keep their
expectations realistic. Dyson was quoted as saying: "We can't write
a lexicon with a solution for all the different problems that can
arise."
Meanwhile, cases across the country have been put on hold until
the outcome of the three appeals is known, as each relates to
application for relief from sanctions imposed for non-compliance
with case management rules.
Until the issues are resolved, keeping abreast of recent case law
is essential, according to a report in Solicitors
Journal. It said that although severe sanctions can be
imposed for non-compliance, an overly aggressive approach to points
arising from Mitchell may be criticised - as happened in Rattan
v UBS.
Turning away cases
Another problem that is being linked to the Jackson
reforms is access to justice for personal injury clients.
Solicitors Journal also carried an article in which the Association
of Personal Injury lawyers voiced concerns that more and more PI
firms were turning down cases with borderline prospects of
success.
In response to the Civil Justice Council's call for evidence on
the first year of the Jackson reforms, APIL said solicitors were
shying away from complex and high-risk cases, citing fears over
financial viability.
The Solicitors Journal article pointed out that many PI firms are
taking these decisions 'not to thrive, but just to
survive'.
A significant number of firms are setting the Damages Based
Agreement proportion at 25 per cent, rather than negotiating the
fee with the client in the manner apparently intended by Jackson,
the report added.