The Jackson reforms will leave “blood on the floor” and a lack of resources behind them will leave courts and judges “overwhelmed” by the extra workload, Master Cook of the Queen’s Bench Division has predicted.
A clinical negligence specialist, he warned of delays in the early stages post-1 April and urged both sides to adopt a “wholly new frame of mind” and collaborate on drawing up cost budgets.
Speaking last week at a forum in London on costs and children’s claims, organised by Pattinson & Brewer, Master Cook said: “In short there is going to be blood on the floor and that seems to be the intention of those who have drafted the rules.” The addition of proportionality to the overriding objective, together with other key changes, would “have a huge potential impact on the case management process”.
He emphasised the importance of having a “simple, quick and efficient line of communication” to the court. Firms should ensure the court has their e-mail address and monitor the messages for its response.
He acknowledged that operating under the new rules would be a challenge to the capital’s clinical negligence regime, with its “limited cadre of masters”. He observed that a lack of resources had led to the cost budgeting pilot in clinical negligence being cancelled.
“Resources are going to be a problem across the country,” he predicted. “Nobody, least of all the Ministry of Justice, has undertaken a resource impact study on the effect of the changes.” The “clever money” was on the likelihood that “many courts… up and down the land are going to be overwhelmed by the additional workload that is created by these reforms”.
Clinical negligence lawyers should try to understand the difficulties the judiciary faced, he urged. “Our plea to you will be for a greater degree of co-operation in the progress of litigation.”
Judicial involvement in cost budgeting was a critical issue for resources. “Our view is that if we have to cost budget above three in every 10 cases, it’s going to get very difficult and the waiting lists are going to get very long,” he said. In any event there would be delays “especially at the early stage” but the court would “try to minimise that” as far as possible.
Cost budgets can be a “very useful tool for efficient case management” because the process of preparing a budget “directs attention to the overall conduct of the case from the very start”.
Master Cook advised firms to be clear about their budget assumptions, and make sure they spell out contingencies and budget carefully for them, so as to provide “wriggle room” during costs assessment. “Unless you have built into the budget sufficient wriggle room, you have really tied your hand in terms of the recoverability of costs.”
The court would be assisted if “both sides actually sit down and have a sensible discussion about the potential budget; if necessary about the assumptions which are likely to underlie the budget and about any contingencies”.
Budgets can be revised both upwards and downwards, he advised. If changes have to be made, firms should “make a prompt application” to the court. “We will do our best to deal with them in a reasonable period of time,” he said.
He warned that costs judges would “be looking at the bottom line with regard to proportionality” during assessment of the budget. “We will not be looking at hourly rates… we simply haven’t got the time, money, nor energy.” Failure to submit a cost budget in time would be “one of those blood on the floor moments”, he warned. Firms would recover only the court fees if that happened.
Concluding, Master Cook said “a wholly new frame of mind and attitude between claimants and defendants” and “a far greater degree of collaboration” were required for the reforms to “work sensibly”.