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Chairman's Report 2013

Please see Chairman's Report here

E-disclosure

TeCSA, TECBAR and Society of Computers and the Law have worked over the past 9 months to formulate and agree upon the attached near final draft of the E-Disclosure Protocol, Guidelines and Timeline. It is now before the TCC Judges for comment. 

 

The draft TeCSA E-Disclosure Protocol, TeCSA  E-Disclosure Guidelines and TeCSA E-Disclosure Timeline (more for Court matters but a good aide memoire all the same even in arbitration) together with a full guide to E-Disclosure prepared for TeCSA by Andrew Haslam are on this link. These first three documents incorporate the consolidated current views of all three organisations on best practice with dealing with larger document cases. The Protocolincludes a valuable claw back provision for inadvertent disclosure within clause 7.2.  The E-Disclosure Guidelines includes an “introduction/commentary” that covers the practical points about how to use the Protocol on a paragraph-by-paragraph basis.

 

TeCSA is hoping to finalise its E-Disclosure Protocol material before November 2013, this link takes you to the latest draft materials for your information and use in the meantime.

Please click link http://www.tecsa.org.uk/e-disclosure

More on Costs Budgeting ....

More on costs budgeting…

On 19 September last year, Andrew Mitchell MP probably anticipated a pleasant end to a challenging day as Chief Whip: leaving his office in Downing Street and attending a dinner at a private members' club.  What happened on leaving Downing Street has however provided many inches of newspaper column, has involved the arrest of a police officer and is now the subject of a defamation claim by Mitchell against The Sun.  And "Plebgate", as it has become known, continues to provide column inches, but this time in respect of the – perhaps unexpected – arena of costs budgeting.

Readers of this blog will no doubt be familiar with Precedent H and the new costs management regime and our last blog entry examined the wisdom of the £2m exemption for the TCC and mandatory costs budgeting in general. The Mitchell defamation claim has now provided a salutary warning to solicitors of the perils of not filing a compliant Precedent H and looks set to go to the Court of Appeal.

Mr Mitchell’s solicitor failed to file a cost budget 7 days before the CMC, although one was filed the day before the CMC.  At the CMC their costs for the whole action were limited to court fees only.

 

Needless to say, Mr Mitchell (and no doubt his solicitors) were not happy with this and promptly applied for relief from sanctions which, after a fully argued and evidenced hearing, was denied on 1 August 2013.

 

The Master was pretty clear in her decision.  Primarily she decided that she was not able to overturn her own original decision by way of an application for relief from sanctions.  That was an appellate matter and should be referred to the appeal court.  However, if she had been able to reconsider she would still have imposed the same order (no costs):

 

-       Rule 3.14 applies to failure to file a budget on time.  Not simply failure to file a budget at all.  “I read rule 3.14 as meaning that the automatic sanction set out there is triggered if a party fails to comply with rule 3.13, in other words is in breach of the 7 day time limit.”

-       Relief from sanctions “engages ‘old fashioned’ concepts of fairness, access to justice including Art. 6, and requirements for proportionality of response, in addition to adherence to the new overriding objective.”

-       Fairness and Justice has changed.  what we now mean by ‘dealing with cases justly’ has changed, or if it has not changed then at the very least there is a significant shift of emphasis towards treating the wider effectiveness of court management and resources as a part of justice itself.”

 

Mr Mitchell’s solicitors argued that they were short staffed and engaged on other matters – there were two partners, one assistant engaged on preparing for two other hearings within days and three trainees of whom two were on leave.  One senior associate had just left – we can perhaps guess why.  Because of the alleged urgency of the case, the court gave the parties 11 days' notice of the CMC so only 4 days to file a cost budget, two of which were over the weekend.  The claimant’s solicitors also claimed not to realise that the cost-budgeting regime had not lapsed in respect of defamation cases.  The Master’s view on all of this was that:

“even before the advent of the new rules the failure of solicitors was generally not treated as in itself a good excuse and I am afraid that however much I sympathise with the Claimant’s solicitors, such explanations carry even less weight in the post Jackson environment.” and

“The excuses set out in the evidence did not justify relief.”

Her general comments should serve as a reminder to us all:

Budgeting is something which all solicitors by now ought to know is intended to be integral to the process from the start, and it ought not to be especially onerous to prepare a final budget for a CMC even at relatively short notice if proper planning has been done.”

 

The stricter approach under the Jackson reforms has been central to this judgment. It would have been far more likely that prior to 1/4/13 I would have granted relief on terms,”

 

Permission has been granted for an appeal and it will be interesting to see whether the Court of Appeal is willing to take a hard line on cost budgets or whether the "good reasons" for departing from a costs budget as set out in the Henry case (another defamation case against The Sun) might kick in.

 

Unfortunately perhaps for Mr Mitchell (or, rather his solicitors who are acting on a CFA), the Plebgate defamation case is another example of the courts taking a pretty strict approach to mandatory costs budgeting.  The Elvanite case in the TCC is another where a (successful) defendant's costs are to be assessed using the approved budget as the starting point, notwithstanding the fact that its actual costs have come in at practically double the budget.

TeCSA's response to the recent consultation on mandatory costs budgeting (which can be found here) [link] is frank in its views.  The real concern is that the crucial cost-benefit case for mandatory costs budgeting has not yet been made out.  In fact, its introduction might simply bump up the cost of litigation which will reduce the attractiveness of the TCC.  Given how well the TCC is currently viewed by its users (including international users) it would be unfortunate to say the least to have mandatory costs budgeting undermining that reputation.

 

Please click here for TecSA's response to the CPRC Consultation Paper as at 19 July 2013

Costs management and budgeting - a lack of real traction - opting in again!

Costs management and budgeting – a lack of real traction – opting in again!

As some of you know the final report on the costs budgeting pilot published by King’s College London, which TeCSA joint sponsored was published last month, (we have it on our website), makes for an thought-provoking insight into a battle TeCSA has learnt is going on within the judiciary. We can understand why as most punters we know, and let’s face it we are closest to the construction industry, that’s right the clients out there, are mightily concerned cost management is going to disadvantage recovery of costs and do nothing good for TCC practice, which so far as cost management is concerned was not perceived to be in trouble or need for regulation by the Judiciary and is seen my many as at the cart end of the horse!

Many of us were dismayed at the start of the year to see that the overriding objective was to be amended (as it now has in smaller cases) to include dealing with cases justly “and at proportionate cost.”  Therefore even if costs are incurred reasonably and are necessary, they may be disallowed if the court considers that they are disproportionate.

In all multi track cases commenced on or after 1 April 2013 we now know in a County Court or in the Queens Bench or Chancery Divisions of the High Court (except the Admiralty, TCC and Commercial Courts) all parties (except litigants in person) must file and exchange costs budgets (in the form of precedent H) by the deadline set by the Court in a notice of allocation or 7 days before a case management conference. If a party fails to do so, it will only be able to recover its court fees from its opponent. If the costs budgets are agreed in advance, the Court (in the real world) is likely we think nine times out of ten to simply record this in a costs management order. If the parties cannot agree in advance, the Court will look at the budgets and either approve or amend each party’s budget. Once the budgets have been filed at Court, a party will need to agree any changes with the other side or apply to the Court to amend its costs budget.

As is general public knowledge, the Commercial Court somehow managed to win itself an release from costs budgeting a while back by convincing Lord Justice Jackson that, in the high-value commercial cases dealt with in the Commercial Court, such measures were unnecessary. Jackson duly accepted this in his 2009 reform proposals. Then at the Bar Council’s annual conference last year, the Commercial Court’s Mrs Justice Gloster (as she then was) labelled this in terms of having ‘won the battle’ on costs budgeting.

Fast forward to February this year, shortly before costs budgeting came in across the board on 1 April, and another carve-out was granted, which many members of TeCSA and TECBAR learnt of when Mr Justice Ramsey gave his lecture on 20 March 2013. We learnt that for TCC and Admiralty dealing with similar high-value claims, to the Commercial Court, they rightly feared ‘forum shopping’ problems if they were subject to costs budgeting while the Commercial Court was not! We learnt that come about July the TCC might review its opt out. By all events cases worth more than £2m in the, Technology and Construction, Chancery Division and the Mercantile Courts were also excused.

This exemption will be reviewed next month - yes in July, however, and according to a TCC User Meeting the writer attended in April it is by no means certain to stay in place. Mr Justice Ramsay – our own TCC judge in charge of implementing the Jackson reforms has said that his own view was that such exemptions should not exist.

Well we can see in the final report on a costs management pilot which has been running in the TCC and Mercantile Court since October 2011, co-authored by a group of three monitoring lawyers (Nicholas Gould, Christina Lockwood and Claire King), casts some light on what other judges think of the exemptions from costs budgeting; and it seems the to TeCSA the judiciary are none too impressed.

Interviews undertaken with judges conducted for the report showed that ‘many judges shared the feeling that there is no principle for the exemption of the Commercial Court, and they find this very unsatisfactory’.

One reads that a specialist mercantile judge interviewed said he firmly believed that costs management should be ‘across the board’, adding that ‘no rationale’ had been given for the Commercial Court’s exemption, and describing the additional exemptions announced in February as frankly ‘illogical’. The report carried on: ‘The cynical view is that there are so many foreign litigants in the Commercial Court (Berezovsky v Abramovich etc.), that the decision had been made to allow [litigators] to continue earning very high fees in the Commercial Court. Consequently big firms might choose to start proceedings in the Commercial Court for a “free for all”, instead of using courts of choice such as the Mercantile Courts in Bristol or Birmingham…‘Why should a mercantile judge be forced to tell Barclays Bank and HSBC that they cannot spend more than X on their expensive City firm of solicitors, when the Commercial Court is free from this obligation? Judges clearly resent that no guidance whatsoever was given on this.’ Well so do we!

Plainly the senior judiciary now sees itself under pressure from those in the lower ranks to remove the costs budgeting exemptions. But if one believes the ‘cynicals’ view sketched above, that could have a damaging impact on the quality and profitability of the bigger city firms, but it could also mean less TCC business, more forum shopping in the TCC, after all our Judges are now allocated for trial sometimes after the PTR, no docket system etc, and arbitration could well be back in the ascendancy.

In his reform proposals, Jackson said that the large commercial businesses that litigate in the Commercial Court had informed him that they were ‘unconcerned’ about the level of legal costs. But it could be that attitudes on this differ according to whether a company is prosecuting a claim, or forced to fend one off. Whatever way you see it, it seems to TeCSA that, before any final decision is made on the exemptions, there must be a proper investigation into whether the clients in these high-value and complex cases actually want their legal costs to be subject to the rigours of costs budgeting, or not. My guess is they do not, so the TCC should be slow to opt back in.

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