24 May 2013
We are ready for post-Jackson role, vows High Court judge
Rolls Royce standards for modest claims: proportionality will be a problem, says judge
A High Court judge says there is a “real determination” among judges to embrace their new “project management” role, and dismissed fears that they are not ready for the Jackson reforms.
Mrs Justice Swift also emphasised that proportionality will now dominate costs issues.
Speaking to Manchester Law Society’s personal injury conference earlier this week, the judge said: “The role in the judge in future has been likened by some to that of a project manager whose task it will be to approve or amend the costs budget and then manage the case in accordance with those budgets. This will require a considerable adjustment from the previous judicial approach.
“However, I detect a real determination on the part of many judges to embrace their new more proactive role and take a greater part than hitherto in shaping the progress of the cases before them.”
Dame Caroline, who is also the director of civil training for the Judicial College, said the time for debating the reforms “is now passed” and that the judiciary and lawyers must “concentrate our efforts on the task of making them work”.
She said that judges are more concerned with strengthening and improving management of cases and the cost of litigation than the funding of claims.
She said: “It is clear from these changes that judges are being exhorted to place proportionality of costs at the forefront of their decision making and to accord much greater weight than they would have otherwise done in the past to enforcing compliance by the parties in litigation.”
Mrs Justice Swift said the issue of proportionality will “dominate” the way in which costs are assessed on the standard basis. She said the “much more problematic issues” will arise when a modest claim is investigated to a costly “Rolls Royce” standard.
She warned: “Here, civil judges at all levels will have to make difficult decision about proportionality. They will have to determine in an individual case what will be a proportionate such for each party to spend on the litigation. Moreover, those decisions will have to be viewed prospectively from the beginning of the litigation and not reached at the conclusion, as was usually the position in the past.”
Precedent will quickly emerge, argued Mrs Justice Swift, as early appeals on costs budgeting rulings will be immediately referred to a “small cadre” of Court of Appeal members, including the Master of the Rolls for consistent and authoritative guidance.
This will help resolve any uncertainty which currently exists, she explained.
Responding to fears that judges are not ready to implement the Jackson reforms, Mrs Justice Swift said: “I do not share those concerns. It is important to remember that judges regularly have to familiarise themselves with new legislation affecting the jurisdictions in which they sit.
“The Jackson reforms cannot be said to have taken the judiciary by surprise. I do not share the pessimistic prognostications of unpreparedness on the part of the judiciary that have been expressed by some. That is not to say that we do not all, judges and practitioners, have a lot to learn about the most effective way to operate the new provisions.”