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UPDATE:  The Jackson Report on Litigation Costs

Lord Justice Rupert Jackson has just published his 587 page report on costs in litigation.  It is the most detailed and wide ranging review of costs since Lord Woolf’s Report in 1999 and may have a number of significant effects on the conduct of civil litigation should its recommendations be implemented.

The overall aim is to try to reduce the costs of litigation and the effect that it has on parties' decisions as to whether to pursue or defend cases. Some of the more significant proposals in the report from our viewpoint are set out below. A more in-depth summary will be available shortly.

Overview of proposals:

- ALTERNATIVE DISPUTE RESOLUTION (including mediation and other processes) – The Report recommends that efforts should be made to educate the public, small businesses and lawyers as to its benefits.

- PRE- COURT ACTION – The proposal is to limit the amount of work parties have to carry out before commencing proceedings in some types of cases, but this obligation continues in debt claims.

- DISCLOSURE OF DOCUMENTS – Judges should be provided with a menu of options to enable them to tailor the standard disclosure process to each case.

- WITNESS STATEMENTS – Parties to be dissuaded from producing unnecessarily long witness statements by the Court imposing limits on their content and length, with costs sanctions for non-compliance.

- EXPERT EVIDENCE – Similar steps are proposed to likewise reduce the length of experts' reports. In addition it is suggested that experts from opposing parties give evidence at the same time (known as “hot tubbing”).

- CASE MANAGEMENT – The Courts should be less tolerant of delays and breaches of orders, with judges given wider ranging powers to enforce compliance. The Report further recommends that larger cases would benefit from at the outset fixing a timetable for the whole matter to trial.

- PART 36 OFFERS TO SETTLE – It is suggested to further encourage parties to settle, that where a defendant rejects a Claimant’s offer to settle and the Claimant does better than the offer, the Claimant’s award should be increased by 10%. Currently, increases are limited to costs and rate of interest awarded.

- CHANGE TO GENERAL RULE THAT LOSER PAYS THE WINNER’S COSTS – It is suggested that a Claimant who loses might no longer have to pay the Defendant’s costs, unless the Claimant behaved unreasonably and subject to the parties' financial resources. At the moment the proposal is that this change is limited to specific types of cases (such as judicial review, personal injury and clinical negligence claims).

If you would like to learn more about how these or other proposals might affect you, please contact Jeremy Lederman in respect of Commercial Disputes and Chan D’Souza for Property Disputes or your usual contact.

Tel: +44 (0)20 7242 0422

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