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Are the incoming buffer directions watering down the Jackson reforms?

It's worth bringing to your attention significant developments over the last few days on the widening opportunity for parties to litigated claims to agree between themselves extensions of time for taking key steps in the court process such as exchange of witness statements and expert reports. At the same time as we do this, we need however to knock on the head rumours which have been circulating in some quarters that these developments signal a major policy change from the new litigation landscape conceived by Lord Justice Jackson and encapsulated in the recent Mitchell v NGN case.

Insurers would have been keen to know had there been any sign from these developments that the strict Mitchell approach was being watered down. The Mitchell decision puts pressure on all litigants, but particularly on claimants, both because their systems may be less well organised and therefore are more likely to end up in a situation of default, and also because where they do the effect of that default is likely to be more significant in that claim, even as far as it being impossible for the claimant to take the claim any further forward. At the same time however, we need to recognise the challenges that the Mitchell judgment poses for insurers and their lawyers to make sure that litigated claims are properly planned at the outset, and that those plans include how the case is going to be taken forward procedurally against anticipated court directions.

The new buffer directions

The first of the recent developments came last week with the acceptance by the senior judiciary that in cases being pursued in the specialist clinical negligence list in the Royal Courts of Justice, a new direction would become the norm allowing the parties to agree extensions of time for taking steps required by court directions of up to 28 days, without having to obtain court approval for that extension, where the deadline in question had not yet arisen. The direction potentially goes further and allows longer extensions, but this time with court approval. At the time of this news emerging, it was widely but wrongly reported as applying to all litigated cases.

A further development this week is that a similar position has been announced as applying to cases in the specialist asbestos RCJ list. The standard direction that will be used here will allow parties to agree extensions of time of up to 21 rather than 28 days, but this court will allow extension agreements to be reached between the parties even after the court deadline has passed. A lack of full consistency there between these two RCJ courts.

Also this week a new model paragraph has been added to those available on the Ministry of Justice website, apparently available now for use in all cases, permitting the parties to agree extensions of up to a period that will be individually specified on a case by case basis.

In none of these three approaches will an extension be possible, we assume, if the extension would affect either the trial date or another court hearing date.

The potential for wider application

It is reported that the Civil Procedure Rule Committee are considering whether to permit this approach generally and specifically whether litigants should be able to extend most court directions by up to say 28 days, and we will presumably see their thoughts in the next few weeks. In the meantime however, these buffer orders are starting to be used by judges up and down the land. We expect to reach the position in the next few months where this sort of direction has become the norm.

The reason for this potential change needs to be understood. The proposed change is judge-inspired. The simple fact is that judges think that they will be able to get on with their workloads better if they are not side-tracked by regular applications from litigants concerned by the Mitchell judgment who want to put back the time for witness statement exchange or expert evidence exchange, and recognise that they now need court approval to do this.

Not a change in policy

What this news is not however is "a major policy change and a major blow to the Jackson/Mitchell courts" as has been claimed in some claimant quarters. Those "Jackson/Mitchell principles", which in turn lead to the need for careful procedural planning in all cases, remain in place. The challenges and opportunities which Mitchell gives rise to remain intact, and it will be a failure of planning to think that this news leads us to any other position. If claimant commentators think that there will be any indirect softening of the Jackson approach as a result of this news, then we will have to await any evidence of that.

Other reform steps

On the broader Jackson reform agenda, the Civil Justice Council is setting up a conference in March for stakeholder groups to discuss the impact of the reforms so far, nearly 12 months on. Part of their agenda is in relation to access to justice issues presumably out of a desire to ensure that claimants are still able to pursue genuine claims, and they are interested to know about the types of case being taken on, and how they are funded. They also want to discuss experiences of costs budgeting and case management to date. Submissions in response are invited by 7 March 2014 and interested parties such as insurers are likely to want to respond.

At the same time, the group led by Mr Justice Ramsey which is considering the rollout of other parts of the Jackson Review not yet implemented is due to provide some feedback by April when the next update of the Civil Procedure Rules will come about. This response is likely to cover the current limited exemptions from costs budgeting and management currently permitted in the larger commercial cases and whether those exemptions should be removed or further restricted. At the same time, the group has been considering the issue of frontloading of costs caused by the fact that costs budgeting and management does not effectively control pre-issue costs, so that we may see in April whether there are any specific proposals to deal with that concern which remains important to insurers.

Further developments in this area are as always awaited.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Simon Denyer

Partner

I am the Strategic Legal Development Partner within the Insurance team.

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