Mr Justice Ramsey, the judge in charge of Jackson implementation, said yesterday that extending qualified one-way costs shifting (QOCS) beyond the limits of personal injury and defamation holds the key to unlocking the “true Jackson”.
Top of the list for extending QOCS, he suggested, were actions against the police.
“One can see it coming in rather more broadly in the future,” Ramsey J said. “Under the true Jackson proposals, if you have a genuine case, you shouldn’t have to pay the defendant’s costs if you lose. That was the true Jackson.”
Speaking at the Compass Law commercial litigation conference in London, the judge said that hybrid DBAs would finally get official approval in the form of regulations “within a year”.
Dampening hopes that action might be taken by the end of this year, he said the government was reviewing the regulations, but “there was an election coming up”.
On compliance, Ramsey J said Lord Justice Jackson had been “lambasted by the Law Society” for getting the courts to make sure people complied with directions.
“The real question, if people don’t comply with rules, practice directions and orders, is what are the sanctions? In reality, it’s process. In essence what one is looking for is a proportionate sanction”.
Ramsey J described the sanction applied by the Court of Appeal in the original Mitchell case, limiting costs to court fees, as “very swingeing”.
Moving to the Court of Appeal ruling in Denton, Ramsey J said: “The word ‘trivial’ has had a new meaning since Mitchell, and courts have tried to look at what is a trivial breach.”
He said the difficulty with the word was that they had to look at both the seriousness of the breach and the significance to the litigation process. Ramsey J said the word “trivial” tended to focus arguments on the first limb, rather than the consequences of the breach.
Referring to Decadent Vapours v Joseph Bevan, one of the three cases in the Denton triple-header, he said: “If you don’t pay a court fee, it doesn’t impact on the court process at all. It may a serious breach of the obligation to pay a fee.
“The major change is to bring in a reflection not only of the breach, but the significance of the breach of process.”
Ramsey J said the aim was to steer the courts away from the “more excessive way” breaches had been dealt with and let more issues be solved by agreement. He called on litigators not to be “silly” about cheques lost in the post and return to “sensible practice”.
He went on: “In two years’ time, I think people will say “Mitchell what?” and there will be some completely new issue that people will think about”.
However, he predicted there would be “much more compliance, whereas before they just couldn’t care.”
He said that he was “amazed” by how many more agreed costs budgets there were in his court, the Technology and Construction Court. Ramsey J predicted that from wholesale disagreement on costs budgets, over the next year there would be more focus on the disputes themselves, with lawyers “looking at the big picture”.
He said there had been a “great increase” in third-party litigation funding. Although this was mainly confined to “low-hanging fruit” with success rates of 70% or above, the risk rates would come down in the future and it “will take the place of legal aid”.
However the judge queried whether there was “a business model that is viable” to take cases with a lower cost base to litigation.
He added: “The real question we will be asking ourselves is whether there will still be access to justice, though we brought in litigation at proportionate cost.”