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Civil Litigation Section

CJS Conference: Mitchell anxiety will subside, says Justice Ramsey

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  • Mr Justice Ramsay

The Civil Justice Section Conference on 30 April saw a plethora of expert speakers, including Mr Justice Ramsey, Gordon Exall and David Marshall, discuss the impact of the Jackson reforms and the Mitchell judgment. We round up the day’s key talking points.

Lord Justice Ramsay

The current anxiety surrounding the Jackson reforms will be short-lived, keynote speaker Mr Justice Ramsey reassured delegates at the Civil Justice Section’s conference on 30 April.

While he admitted that it was too early to say whether the hardline approach taken in the Mitchell ruling has been successful, “in a year or two, it won’t be seen as quite the same effect as at present”. Mr Justice Ramsey’s comments were met with a strong degree of scepticism by attendees: in a show of hands on whether Mitchell has been a success, not a single person said yes.

Mr Justice Ramsey has been tasked with the responsibility of implementing the Jackson reforms, and did acknowledge that many of the changes the new regime has ushered in have now frontloaded costs. But he also stated that adherence to Mitchell is not just about effective costs budgeting, but wider compliance with the Civil Procedure Rules (CPR) and Practice Directions.

Nearly six months on from the ‘Plebgate’ judgment, parties are now becoming “more realistic” about costs budgets, he argued, although some firms are still not submitting their budgets on time. Mr Justice Ramsey reiterated that the Mitchell decision was based on correct principles, and he predicted that the current unease would start to diminish and that we would see a number of cases where relief from sanctions would be granted.

David Marshall

David Marshall, chair of the Law Society’s civil justice committee, conceded that the recent Court of Appeal decision in Chartwell Estate Agents Ltd v Fergies Properties SA [2014] EWCA Civ 506 represented a “slight softening of the Mitchell approach” by the courts, but went on to say that the Mitchell judgment was a “bad decision made for political reasons … [which has] created a climate of fear, uncertainty and mistrust”.

“Jackson’s reforms to case and costs management will frontload and increase court time and costs for all cases - the very opposite of his terms of reference and intent.”

Marshall went on: “There is a strong desire within the judiciary to back the Jackson reforms; there’s a belief things will ‘blow over’ in time. Solicitors need to know clearly in advance what sanction will apply, and that it is fair and proportionate and will be applied consistently.”

Marshall called for “a proper cost benefit analysis of the reforms, both to litigants and the state, and to fit the process to the available resources instead of the other way around”. He said that the Law Society’s civil justice committee would conduct a review of the CPR and the fairness of the sanctions within it.

Marshall acknowledged that there were massive new challenges for practitioners compounding the difficulties of the post-Jackson regime, but that “eventually we will all come to our senses”.

Gordon Exall

Gordon Exall, barrister at Zenith Chambers in Leeds, gave the conference a ‘back to basics’ presentation, arguing that having in place a clear policy and systems for preventing errors – and dealing with mistakes as soon as they occur – would allow firms to avoid many of the problems thrown up by Mitchell. The message was clear: get your costs budgets in on time and leaving nothing to chance.

Keith Etherington

The second half of the conference rounded up some of the current issues affecting civil litigators.

Civil Justice Section executive committee member Keith Etherington discussed the new single county court, introduced by April’s update to the CPR: a single national entity with a national jurisdiction. The County Court will sit at various locations throughout England and Wales. The courthouses will act as hearing centres, with court administrative offices attached to them.

Paul Downer

Paul Downer of Her Majesty’s Court and Tribunals Service discussed details of its Fee Account project, will replace payment of court fees by cheque with direct debit from 29 September 2014. The service will be available in all civil, family and magistrates’ courts, the Royal Courts of Justice, the Court of Protection and Probate Registries. Customers will be able to sign up for their account to be debited on a weekly basis or to pay in advance.

Tony Guise

Section executive committee member Tony Guise gave an update on the government’s plans to install cost-effective IT infrastructure in the civil courts. The government has pledged £75m per annum for five years, starting from the 2015-2016 financial year, to refurbishing court buildings and improving the technology within them. The Law Society is prioritising the issue in the current work programme for the civil justice committee, Guise said, to ensure the investment is used as effectively as possible.

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