Teddy bears’ picnic


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Excellent, and scathing, article from Dominic Regan in the New Law Journal on the botching of the implementation of the Jackson Reforms.

In addition to criticism of the fact that fixed costs for the fast-track will not happen next year (although see yesterday’s post), he expresses concerns as to the new proportionality test.

Although it appears that a new proportionality test in line with Lord Justice Jackson’s proposals will be introduced, the rules committee will not be providing a Practice Direction giving guidance as to how the new test will be applied. As Regan notes:

“Absent guidelines, there will be a free for all and satellite litigation will roar away. Remember that the test will apply to every case… Well, now we will have utter uncertainty in potentially any and every dispute. This will make the costs wars look like the teddy bears’ picnic.”


4 thoughts on “Teddy bears’ picnic


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    Jonathan James on said:

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    “Why should the court do the work of those paid £200, £300 or more an hour?”

    I don’t disagree with Dominic’s sentiment about the courts reminding litigants of deadlines – for one thing, where is the funding for the necessary court staff going to come from? But just how many lawyers will be getting over £200 an hour when the changes are implemented? There aren’t so many recovering at that rate even now.


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    Anon on said:

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    Dominic’s view always well worth listening too.

    However, as I understand it, it is Jackson LJ himself who is against having a PD giving guidance – see his third implimentation lecture. One of the reasons no doubt is that where you have a new test (‘proportionality means necessity’ or whatever), and then a PD explaining the new test (‘necessity means essential or indispensable’ – the proposed PD) you end up with an endless spiral of satellite litigation trying to further define terms, with costs lawyers and judges risking disappearing up their own backsides (if they aren’t there already).

    The original idea of proportionality was a failure in part for this reason.

    Why we can’t simply have a proper concept of reasonableness whereby, if costs are excessive by reference to, for example, value and complexity, they are disallowed as unreasonable for that reason, thereby dealing with issues of proportionality without any need to chase around silly new definitions and create lots of work for costs lawyers I don’t know. Oops – what am I saying?


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    Anonymous on said:

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    the difficulty with proportionality, is that it is a test open to interpretation and conjecture, dependant on whose viewpoint is being taken
    A lay-client who has suffered relatively minor (in terms of quantum) loss as the result of percieved negligence of a hospital, for example, but where that hospital investigates then refutes and wrongdoing, will think it proportionalte to expend time and costs in getting damages for the wrongdoing
    Minor RTA claims are frequently denied entirely, irrespective of the value or costs of running such through the litigation system (2 seperate Protocols plus the Court process), and yet the only way for the motorist to recover damages is to go through the process. Remember, there frequently it is not simply about damages, but the fact of the future Insurance implications and credit rating
    The difficulty with proportionality, is it is all too frequently bandied by Defendants whom fight a matter, then complain at the costs that fight has incurred. The Jackson proposals introduce a real danger, that there will be a tendancy to cut corners as “its not worth the cost” which wont be recovered when a Defendant inevitably raised the proportionality argument
    Result? I see whole new opportunities potentially for those in the field of professional negligence.
    And a final thought. If its disproportionate to expend costs to prove a claim in the first place, what will all those draftsman who currently fight bills tooth and nail to assessments and claim thousand of pounds in DA costs to do so, when the new rule rewards them with vitually nothing; what for the advice to clients then?


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    annon on said:

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    I like the clin neg claims that are vigorously Defended and then settle for £500,000 way down the line. They then complain about costs when each party has 6 experts …. couldnt make it up

    They simply will not admit liability – too many reputations at stake.

    Always liked this article

    http://www.thelawyer.com/sorry-the-hardest-word/1004492.article

    I just think the new test, in whatever form it comes in, is going to play into the hands of wealthy and powerful Defendants.

    They will be able to defend to the hilt to test the means and gumption of a Claimant

    I Just dont understand how you can find items to be necesary and reasonable in amount but reduce nonetheless. Anyone would think the receiving party asked to be “wronged” in the first place

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