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Civil Litigation Section

Where are we now?

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It’s a year since Jackson, and the dust has settled on the Mitchell judgment. Where has it all left us? Professor Dominic Regan outlines his predictions for the rest of the year and beyond.

1. Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 is here to stay (read our Spotlight on the judgment here). There is no going back. The later Appeal Court decisions in Theverajah [2014] EWCA Civ 15 and Durrant [2013] EWCA 1634 present a united, watertight approach. It is no surprise that the High Court has applied the new, tougher post-Mitchell philosophy to late applications for setting aside judgment in default; see Samara v MBI & Partners UK Ltd & Anor [2014] EWHC 563 (QB).

2. More work is going to be diverted to the county court by virtue of hikes in the High Court entry threshold.

3. Budgeting will become the unavoidable norm in multi-track work, save where quantum is above £10 million.

4. Fixed costs will be extended to all fast-track work in the long term, and I believe Sir Rupert Jackson would probably see them worked into lower level multi-track cases too. The hourly rate is despised by the senior judiciary and, increasingly, by clients too. The way forward is via a variety of charging options. The damages-based agreement is emphatically not time-related and nor are the fixed costs applicable to certain injury cases from 31 July 2013. Expect a long-term movement away.

5. Alternative dispute resolution (ADR) will become increasingly important. Those understandably terrified by the implications of the Mitchell judgment will look for a quiet life. The revised overriding objective with new emphasis upon proportionate costs will increase the pressure upon parties to sort their disputes out by methods that offer an alternative to an expensive trial.

6. Paper will disappear. The electronic filing of material will arrive. Fat bundles bursting out of lever arch files, already an anachronism, will be no more.

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