Lord Dyson's Perspective on Costs Management in Civil Litigation: Challenges and Solutions, Exams of Cost Management

Download Lord Dyson's Perspective on Costs Management in Civil Litigation: Challenges and Solutions and more Exams Cost Management in PDF only on Docsity!                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            Confronting Costs Management Harbour Lecture by Lord Dyson MR May 2015 It gives me great pleasure to add a short contribution to this important topic. At the very outset, I want to make it clear that I strongly support costs management. As Sir Rupert says, the new regime is in the public interest and is here to stay. That is not to say that the current system is perfect. It is unsurprising that the experience of the first two years of the Jackson reforms has revealed some problems. It would have been remarkable had the position been otherwise. That is why the sub‐committee of the Civil Procedure Rule Committee chaired by Coulson J has been established to examine the extent of the problems and to make recommendations for improvement. It is also why a seminar organised by the senior QB Master was held in March 2015 on costs budgeting in clinical negligence cases. The Jackson Report was a brilliant piece of work. It was the product of a huge amount of research. But there is no substitute for testing civil justice reforms in the crucible of the real world of civil litigation. This was a luxury that was denied to Sir Rupert apart from a few pilots. We do now have the benefit of seeing how the reforms have been working in practice. In many respects, the cost management aspects of the reforms have been successful. I greatly welcome the fact that the percentage of cases (other than personal injury and clinical negligence cases) in which costs budgets are agreed is steadily rising; and that, for the most part, solicitors are not collaborating to agree inflated budgets. Judges and practitioners are becoming more familiar with the process of cost budgeting and are getting better at it. That is only to be expected, but is nevertheless encouraging and welcome too.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        We are indeed fortunate that Sir Rupert has found the time to produce a detailed report on the working of the costs management regime two years after its introduction. His lecture this evening is a carefully researched and clear review of the current situation as he sees it. It is a valuable piece of work. But it is not appropriate for me to comment on each of the points that he makes, not least because, as Head of Civil Justice, I would not wish to commit myself without taking account of the views of other interested parties. I am also conscious of the central role of the Rule Committee in all of this. There are, however, some aspects of what Sir Rupert has said on which I would like to comment. The benefits of cost management are obvious and, I believe, not controversial. They tend to be overlooked. The focus of the attention of judges and practitioners alike tends to be on the problems. That is inevitable. Sir Rupert has identified a number of the main objections that are levelled against costs management. I agree with his answers to them. He has also identified eight particular problems which have emerged and proposed solutions to them. I agree with him that the solution to the problem of inconsistency of judicial approach lies in judicial training. Inconsistency of judicial approach undermines public confidence in the justice system and encourages forum shopping. His proposals for a standard form of costs management order; for an amendment to the rules in relation to the time for lodging costs budgets; and for changes to precedent H should be given careful consideration by the Rule Committee. Nobody disputes that there is a problem of delay in clinical negligence cases in London and some (but not all) of the regional centres. There has been a massive increase in the number of clinical negligence cases in London in the last few years, but no increase in judicial resources to deal with the case and cost management of them. As Sir Rupert says, the waiting time for a first case management conference in London is now about nine months. This is unacceptable. He proposes that the way to resolve the impasse is by granting a one‐ off release and coupling this with the repeal of parts of rule 3.15 and PD 3E. These are proposals that are worthy of the most careful consideration. But I have real concern about them. The key proposal seems to be that the Rule Committee should issue new criteria to guide courts in deciding whether or not to make a costs management order; and these