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Civil Litigation Costs (Lord Justice Jackson's
review) What is my purpose in writing this article? Primarily, my purpose is to encourage the reader to take an active interest in the review of civil litigation costs which is being undertaken by Lord Justice Jackson. At the end of July 2009, the closing stage was reached for interested people to make their submissions to Lord Justice Jackson [he had produced his preliminary report in May 2009 which invited comments by the end of July]. However, perhaps this next stage [August to the end of 2009] marks the real beginning and one should not feel that all is now over bar the shouting, so to speak. This present review of litigation costs started off with terms of reference which demanded that Lord Justice Jackson should undertake a wide ranging review into civil costs. The objective of the review is to review the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportional costs. By December 2009, it is Lord Justice Jackson's intention, having considered all the evidence, that he will produce proposals for the reform (as far as appropriate) of civil procedure and of the costs rules in order to promote access to justice at proportionate costs. When those proposals are published, I am hoping that the wider community concerned with dispute resolution will study them in detailed and, depending upon the proposals, either lobby for support, or point out the failings which are likely to stem from the adoption of the proposals. As for me, I am cynical about the whole exercise. I have canvassed my views since the latter part of the 1970s. I dropped a line to the Prime Minister in 1989, I plagued Lord Woolf in 1995, all to no avail. In short, I failed to persuade anyone, who had the power to bring about change, about the merits of my solution to the matter of costs in litigation; perhaps a sign of wrong thinking on my part; perhaps simply a lack of skill in persuasion. The only comfort that I have is this: in the 1970s, there were concerns about the same issues; in the 1980s, there were concerns about the same issues; in the 1990s, there were concerns about the same issues; in the last 10 years, in spite of Lord Woolf's efforts, there has still been concerns about the same issues; indeed, as far as I understand it, there have always been concerns about the issues of costs in litigation. Perhaps, if I had been more persuasive about my views, the matter would have been resolved years ago, once and for all. Is it presumptuous of me to say that? Perhaps. However, as for all those, whose solutions were hailed as the foundation for success in the matter, I can only say that in spite of all the investigations and reports previously undertaken in the past, none have resolved the matter; and here again, now, merrily, merrily, we are all dancing around a new name; another leading figure who has, yet again, been charged with the task of finding the answer. Maybe, Lord Justice Jackson will look at my submissions as say, "Well, all else has failed over the years so perhaps this man has touched upon the solution." However, maybe, he won't! Perhaps you may be interested in reading my present submission, which was submitted to Lord Justice Jackson by the closing date; at the end of July 2009. With a little editing, it was as follows:- I started off by referring to the following:- My booklet: Civil Justice - Another chance to get it right (A letter to Lord Woolf), 1995; ISBN 0 9514295 4 X. My pamphlet: Disputes - The 'Square Root' of disputes and procedures for settlement,1998, ISBN 0 9514295 9 0. A list of the articles which I have written over the years. I explained that much of the matter which I have written about in articles is, in one way or another, a factor which contributes towards the costs of procedures concerning matters brought before a decision maker; and, indeed, also the procedures which involve those who do not actually make decisions, but who assist with the resolution of some matter which people need to resolve. I stated that, I do not offer up the list of articles as testimony, rather I should prefer to think that my arguments would carry the day. I explained that the other two documents, namely: A letter to Lord Woolf and The Square Root of disputes and Procedures for settlement, set out my arguments about the cause of costs of disputes and that these arguments had not succeeded up till now. At least, they had not succeeded in bringing about change. I stated that I was encouraged by some of the remarks in Lord Justice Jackson's Preliminary Report, in particular, that he still has an open mind; and that the assertion by some protagonists that he had already made up his mind is incorrect [his p. 8 and footnote 8]. I noted that Lord Justice Jackson had quite rightly, in his introduction, paid his respects to Lord Woolf, who had worked really hard to achieve an improvement. I stated that I had attended Lord Woolf's seminar in London. I stated that the seminar was most interesting. I stated that I had read Lord Woolf's reports and that I had made my submissions in the form of the above booklet, A letter to Lord Woolf. I noted that the Lord Chancellor of the time, Lord Mackay of Clashfern, in his press notice, 28th March 1994, ref: 61.94, had stated, "My aim is to reduce the cost of litigation, simplify the rules and remove unnecessary distinctions of practice and procedure." The Lord Chancellor appointed Lord Woolf to achieve that task. Then, I emphasized that the principal purpose of the task was to "reduce the cost of litigation." Lord Woolf, in making minor modifications to the Lord Chancellor's wording, repeated that aim in his interim report, by leading off with the bold statement, "To improve access to justice and reduce the cost of litigation." I stated that, at this present time, I should imagine that Lord Woolf, a man greatly experienced in these matters, would know full well that an opening praise by one's successors is usually followed by less savoury things. Even so, I stated, I guess that Lord Woolf will still wince a little when he reads Lord Justice Jackson's comments, at para. 1.3, that "over the last decade there have been mounting concerns about the costs of civil justice." I stated that, perhaps Lord Justice Jackson could have been a little kinder in his observation. Perhaps he could have said something like this: for centuries there have always been concerns about the costs of civil justice and, in spite of Lord Woolf's sterling efforts, the situation is still causing concern so we are going to try, yet again, to solve this enduring problem. I stated that, the purpose of my contribution today was to restate my arguments, which were used in trying to persuade Lord Woolf to take a different approach, i,e., the arguments contained in my booklet, A letter to Lord Woolf. I added that by the words of Lord Justice Jackson's report, I feel somewhat vindicated in my belief, at that time, that the high costs of litigation would not evaporate with the introduction of the reforms after Lord Woolf's review. However, the majority of those who were interested in Lord Woolf's reforms obviously believed in them. I acknowledged that, in a way, in spite of my failure to persuade Lord Woolf, I too shared their hope of success because that is the outcome which is naturally sought by ordinary people. I stated that the added advantage in my submitting A letter to Lord Woolf is that it seemed right to consider the matter historically as well as simply being forward-looking in the hope that one can finally, once and for all, combat human nature. I stated that, I supposed in one sense we can say that Lord Woolf has, after much work and effort some ten years ago, proven once again the point that procedure is not, in itself, the cause of high costs. I added the comment to Lord Justice Jackson, that perhaps, if I am right, and if he agreed, he would not have to suffer someone else, a century hence, repeating his own words, namely: that over the last decade, since Lord Justice Jackson's report, there have been mounting concerns about the costs of civil justice. That concluded my present submission to Lord Justice Jackson. Returning now to the core of the matter of costs, I should like to focus some attention on encouraging more analysis of the topic. At the end of my pamphlet: Disputes - The 'Square Root' of disputes and procedures for settlement,1998, ISBN 0 9514295 9 0, I concluded with the following observation:-
Although in isolation, without reading the total essay, the above paragraph may not make complete sense to a person outside the field of dispute resolution, in this article, I am writing for a special audience and so I hope that the meaning is clear enough. In the context of the Review of Civil Litigation Costs, it is the last part which is particularly pertinent. It will be obvious to us all, that no matter how one reviews the procedure which is used in order to reach the judgment or the award, the inherent aspect of the judgment or award, as referred to, will never change. If one takes an actual judgment of the court, which judgment is, of course, the final outcome (subject to appeal procedures) of the route travelled in the civil court procedures [i.e., those procedures presently under review by Lord Justice Jackson], we can, if we care to, see the causes of the problems related to civil litigation costs. If we take an ætiological approach to the matter of unacceptable costs in litigation and look upon the judgment as a symptom of some problem as opposed to the solution [or cure of the problem], then we may begin to see causes in true context. Looking at a judgment as a symptom of the illness which civil litigation is suffering from, we can start by asking some basic questions, namely: (1) what does this judgment tell us about the judge; (2) what does it tell us about the law; (3) what does it tell us about the lawyers concerned with the case; (4) what does it tell us about the experts; (5) what does it tell us about the parties; (6) what does it tell us about the facts related to the matter; (7) what does it tell us about procedure; (8) what does it tell us about costs; and, (9) what does it tell us about any other points, depending upon the particular type of case? As stated at the beginning of this article, my purpose in writing this is to encourage the reader to take an active interest in the review of civil litigation costs which is being undertaken by Lord Justice Jackson. I am hoping that you will take hold of some judgments and don your ætiologist's hat and search for the cause of the dire problems in our litigation system which Lord Justice Jackson has his eyes focused upon. For example, how about applying your eyes and your minds ætiologically to the vast string of judgments related to the Adjudication cases [i.e., the enforcement of Adjudicators' Awards under the Housing Grants Construction and Regeneration Act 1996], which cases have travelled through the court system and, then, seek to ask yourself the 9 questions posed above for each judgment and see if you can understand better what caused the excessive , as it is likely to be, costs in those cases. Although I have travelled this journey since the late 1970s, and I have often expressed my thoughts in writing, I am hoping to look again at the matter and prepare something in readiness for the time of the publication of Lord Justice Jackson's proposals at the end of December 2009. Of course, perhaps when I read the proposals, I shall be pleasantly surprised to discover that he has stumbled upon the real cause of excessive costs in litigation; in which case, I shall be lobbying for the implementation of his proposals. I hope that this article may encourage those who have not already taken an interest in this matter to make some contributions because it is often the case that those who do not usually contribute have the most wisdom to offer. END |
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