“Encouraging signs” of post-Jackson judiciary flexing muscles

Edwards: judicial enthusiasm

There is already evidence of the judiciary “taking ownership of the civil justice reforms and the new emphasis on compliance and enforcement”, the head of costs at leading defendant law firm Hill Dickinson has claimed.

Paul Edwards said three county court cases that his firm has been involved in – as well as the recent High Court ruling on amending costs budgets – “exhibit enthusiasm for the ‘new world’ of civil procedure and costs”.

He continued: “These are very early, but encouraging, signs that the judiciary are willing to exert their new powers to ensure that defaulting parties are left in no doubt as to the consequences. While it obviously pays for defendants to be wary likewise of the consequences, it is clear that we should not shy away going forward from asking the courts to consider poor conduct and non-compliance and take firm action.”

The first case was a significant personal injury claim (with loss of earnings approaching £60,000), in which the claim was struck out and the claimant ordered to pay the defendant’s costs.

Mr Edwards explained: “Liability was not an issue, so this should have been a straightforward case to conduct. However, the claimant’s solicitor repeatedly failed to comply with directions and eventually, with only three weeks to go, applied to vacate the trial. Despite the substantial claim for loss of earnings, they had been unable to obtain their client’s personnel file to support it.

“As the application to vacate was made before 1 April 2013, we anticipated the claimant being debarred from adducing the evidence and being ordered to pay our costs. However, the judge went a step further by striking out the whole claim and refusing permission to appeal.

“He considered that the reforms had been on the cards for long enough that the claimant’s solicitor should already have been acting in accordance with them and that the claimant had already had adequate time to get its case in order.”

In the second case, the claimant solicitors had failed to lodge papers necessary for a costs hearing to go ahead and were in default of a number of rules. They considered that this position could be dealt with via an adjournment or order for the defendant’s costs, but Hill Dickinson disagreed.

“We argued that the defendant was entitled to finality and that, as costs were relatively low, at £11,000, it was not proportionate to adjourn. Their previous conduct also left much to be desired. The judge agreed, swayed by the points on proportionality and finality and not only did the claimant solicitors get nothing for their efforts, but they were also left owing us money for our costs.”

The third case saw the claimant’s budget reduced by over 30% at the first case management conference. “Highlights include reducing all but one of the seven hourly rates claimed by the claimant’s solicitors, in one instance by over £100 per hour. We substantially reduced the claimant’s allowance for witness statements, claimed at 80% more than ours, by 34 hours, trial time down by 40 hours and expert fees from £24,000 to £18,000.

“Given that the claimant’s total costs claimed were in the region of £393,000, a reduction of 30% represents a very significant saving.”