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Litigators "unconvinced" by balance between procedural certainty and flexibility, says senior judge

Lawyers handling cases before the English civil courts are "as yet unconvinced" that judges are striking the right balance between certainty and flexibility when interpreting new procedural rules, a former chair of the Civil Justice Council's costs committee has said.

Reporting on the implications of the so-called 'Jackson reforms' (31-page / 371KB PDF), Professor John Peysner said that litigators were particularly critical of the approach of judges to granting relief from sanctions for breaches of the rules, following the guidance of the Court of Appeal in a judgment against the MP Andrew Mitchell. Peysner's report was commissioned by the CJC, which is responsible for overseeing and coordinating the modernisation of the civil justice system, to investigate the impact of last year's reforms on access to justice.

"It seems that ... the judicial steer, following the Jackson recommendations, encourages serious sanctions and offers very limited relief," Peysner said in his report.

"Whether the approach is right or not in policy terms it is not without consequences ... [I]t is likely that practitioners will be extremely risk averse if asked to take on cases that might trip them up on sanctions; for example, cases which may be difficult to investigate or bundles of cases which have been handled by a firm which wants or must pass them on following an intervention. This has access to justice implications," he said.

From April 2013, as part of a major update to the civil procedure rules (CPRs) following Lord Justice Jackson's review of civil court procedure and funding, courts have been required to deal with cases "at proportionate cost" as well as justly. As well as this addition to the 'overriding objective' of the civil court system, courts were also given stronger powers to enforce compliance with rules, practice directions and orders.

In the Mitchell decision, the Court of Appeal gave guidance on how strictly the new rules should be interpreted and what constituted a 'trivial' breach for which courts should grant relief from sanctions. The Mitchell case involved a breach of the new costs budgeting rules, under which most parties in civil court actions must prepare and exchange costs budgets for agreement by the court. Costs recoverable by the winning party to civil litigation are now linked to this court-approved budget, and heavy penalties apply to those that do not comply with the regime.

According to Peysner's report, the biggest risk to the success of the reforms was "inconsistency and lack of expertise amongst cost managing judges".

"No amount of Judicial Studies Board training will allow judges in higher courts who have not run a business to acquire the experience of litigators in the vagaries of organising the preparation of a case," he said.

"Perhaps, there is still an element of 'slash and burn' amongst the case managing judges which has allegedly been a function of some assessment hearings in the past, reducing bills by a rough and ready amount. As one who wishes these reforms well, there needs to be a reasonably consistent approach across the country ... careful attention needs to be paid to ensure that the reform is not knocked off course until it bears fruit," he said.

Moving on to consider the implications of the Mitchell judgment, Peysner said that a requirement for strict compliance would work "in the sense that litigators will accept directions". However, this requirement would likely lead to an increase in "risk aversion and applications to the court" by lawyers concerned about their indemnity insurance or the potential effects of non-compliance on a client's case, he said.

"As the court is starved of resources then these applications will form a steadily growing queue and a delay in substantive matters with clear implications for access to justice," he said.

Models that allowed for "some flexibility", such as a recent change to the CPRs formalising the 'buffer direction', would be the best way to prevent these disproportionate effects rather than "subtle changes to case law". The 'buffer direction' will allow parties to agree to extensions of time of up to 28 days between themselves without seeking permission from the court from 5 June, when the latest version of the CPR comes into force.

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