The Court of Appeal is highly likely to uphold the Draconian Plebgate costs budgeting ruling, Professor Dominic Regan has argued.
The leading civil justice academic also predicted that the Damages-Based Agreement (DBA) Regulations will be amended after “massive lobbying” by large law firms.
The Plebgate case, involving a libel claim brought by former cabinet minister Andrew Mitchell against The Sun, saw a High Court master limit his budget to the court fees because of his solicitors’ failure to comply with the budgeting rules.
Addressing the Association of Costs Lawyers’ costs conference in Manchester on Friday, Professor Regan observed that the Master of the Rolls Lord Dyson – who will be sitting on the appeal, which has been fast-tracked to the court – is a “massive fan” of the Jackson reforms, as is Lord Neuberger, the president of the Supreme Court.
“Never forget that Jackson was the work of the judiciary… I really do not see that the Court of Appeal is going to want to be seen to be undermining, betraying or, indeed, killing off this newborn child,” he said.
During an earlier straw poll, delegates agreed that the appeal court is likely to uphold Master McCloud’s judgment.
Professor Regan also expected the review into the courts that are currently exempt from costs budgeting to lead to the widespread adoption of budgeting – “surely the bigger the claim, the more there is a case for budgeting”, he said.
There has been a long-standing doubt that the DBA Regulations as drafted allow hybrid DBAs that mix hourly rates with a contingency element, and as a result commercial firms have steered away from using DBAs. Despite the Ministry of Justice saying in April that it was reviewing the regulations as a result, nothing has been forthcoming.
Professor Regan said it seemed certain the regulations will be amended next April following lobbying from firms including those in the magic circle. It was reasonable, he insisted, for the client “to have some degree of involvement” in their case.
Other changes next year, he said, will include a tidying up of part 36 – including an increase in the ‘reward’ claimants receive when a defendant does not match their offer, on the grounds that the current maximum of £75,000 is “peanuts” in the context of a £10m claim.
Professor Regan also suggested that compulsory ADR is back on the agenda, and highlighted Sir Rupert Jackson's continuing support for fixed costs for all fast-track work, and paperless litigation. Further, the next two years will see “profound argument” over the meaning of the new proportionality rule. Nobody, he said, “has a clue” what it means at the moment.