Managing Litigation

Litigation post-Jackson

Mark Rhys-Jones, Partner,

Litigation and Dispute Management

Eversheds LLP

#thinkfoodlaw

Managing Litigation

Involving legal

Managing Litigation

• Key examples of where involving legal adds value:

– Privilege & without prejudice communications

– Understanding tactics and process

– Analysing legal issues & recognising claims, including value of disputes

– Document/record retention

– Learning & feeding back lessons to the business to reduce risk of repeat mistakes

A refresher of why to involve legal

Litigation post-Jackson

Background and Introduction

Litigation post-Jackson

• In 2008, Lord Justice Jackson was appointed to lead a fundamental review of the rules and principles governing the costs of civil litigation and to make recommendations

• In December 2009, Jackson LJ’s findings were set out in his final report

• The purpose of Jackson LJ’s reforms is to ensure that the costs of litigation are proportionate

Lord Justice Jackson’s mandate: costs

Litigation post-Jackson

• Broadly, the key areas of reform to civil litigation are:

– Costs management

– Case management

– Disclosure

– Part 36 offers

– Funding

• Save for some transitional provisions, the changes went ‘live’ on 1 April 2013

What’s changed?

Litigation post-Jackson

Costs Management

Litigation post-Jackson

• Changes aim to deal with cases justly and at proportionate cost

• Applies to most multi-track cases

• Parties must file and exchange costs budgets

• A new test of ‘proportionality’ in the CPR

• Increased costs burdens for litigants?

The new costs management regime

Litigation post-Jackson

• Consider proportionality at all stages of a case

• Consider quantum carefully from the outset

• If the regime applies, each element of your costs budget must be proportionate

• Even if the regime doesn’t apply, note the general push towards proportionality

• Narrow the issues at an early stage

• Behave reasonably!

The new costs management regime: tips

Litigation post-Jackson

Case Management

Litigation post-Jackson

• Changes to the ‘overriding objective’

• Provisional allocation of cases

• Parties file directions questionnaires

• Online standard directions

• Court’s express powers to monitor compliance with directions and sharper teeth in respect of applications for relief from sanctions

• Docketing and ‘hot-tubbing’ to increase efficiency

• Changes to track limits

• Controls on witness evidence

The new case management regime

Litigation post-Jackson

Disclosure

Litigation post-Jackson

• Applies to most multi-track claims

• Changes aim to ensure that costs of disclosure are proportionate

• Standard disclosure is no longer the default position – now ‘menu option’ for disclosure…

The new disclosure regime

Litigation post-Jackson

• The menu of options are:

1. No disclosure;

2. Each party discloses documents on which it relies and requests specific disclosure from other party(s);

3. Disclosure on issue-by-issue basis;

4. Standard disclosure;

5. Any other order which courts thinks appropriate – e.g. ‘keys to the warehouse’

The new disclosure regime

Litigation post-Jackson

• Parties must file and serve a disclosure report

• Parties must also discuss/try to agree a proposal for disclosure

• Court can give directions on how disclosure is to be undertaken/given at any time

• Do you think that costs will reduce as a result of the changes?

The new disclosure regime

Litigation post-Jackson

• Early planning, budgeting and a firm handle on quantum of claims really is essential

• Think early about who you’ll need to involve in the disclosure process (IT, technical experts, lawyers, employees, the other side, the other side’s lawyers…anyone else?)

• Link in with any e-disclosure requirements

• Careful monitoring of costs is key

The new disclosure regime: tips

Litigation post-Jackson

Part 36

Litigation post-Jackson

• Previously, a claimant received enhanced interest and indemnity costs if it did as well as/beat its own offer at trial

• The changes to Part 36 mean that, in addition to the above, a claimant receives an extra payment (up to £75,000)

• Changes only apply to claimants’ offers

• Aim is to make claimants’ offers more effective in achieving settlement

The changes to the ‘Part 36’ regime

Litigation post-Jackson

• Defendants – think carefully about rejecting offers in the ‘right zone’

• Consider carefully whether to re-make offers already on the table to capture the enhanced benefits

• Impact of changes most significant for claims with value in £300,000 - £500,000 range

The changes to the Part 36 regime: tips

Litigation post-Jackson

Funding

Litigation post-Jackson

• Goodbye CFAs?

– Still exist but success fee no longer recoverable from opponent

– Same with ATE insurance premiums

• Hello DBAs?

– Form of contingency fee (no win, no fee)

– Solicitors’ fees = % of damages recovered

– Caps apply depending on nature of claim

The changes to funding

Litigation post-Jackson

• Generally good news for defendants as no longer face increased costs liability

• Reforms unlikely to have much effect on large commercial/complex/high risk claims

The changes to funding: tips

Litigation post-Jackson

Summing up

Litigation post-Jackson

• Wide-ranging implications for managing litigation going forward

• Changes are still very much in their infancy – expect satellite litigation

• ‘Front loading’ will become the norm…

• …so seek advice and plan early

• Be vigilant in respect of court timetabling

• Make reference to the tips included in this presentation

• Keep proportionality in mind at all times!

How these changes affect your business

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