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Fighting Back

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At times in this post-Jackson world, it has felt like the solicitor’s profession is under attack from all sides. But, argues Rachel Crookes, there are numerous tactics practitioners can use to stay ahead in the conduct of litigation.

Leaving aside the much discussed topic of relief from sanctions, the recent changes to civil litigation which have had the most significant impact upon practitioners appear to be the introduction of costs budgeting and the cuts to both civil legal aid (already available in only a minority of cases) and the Court Service. In this article, I examine some of the ways these changes are affecting the conduct of litigation, and offer some practical suggestions as to how litigators can mitigate these new hurdles.

Hearings

Cuts to the Court Service have inevitably led to delays and inefficiencies in the way in which cases are processed. Some solicitors are reporting delays of as long as 10 months for CCMCs to be listed following the filing of case budgets. A straw poll amongst my colleagues as to their experiences highlighted, amongst other things:

  • A delay of six months in listing a hearing for the handing down of judgment in a summary judgment application in a low value fast-track claim;
  • being told by a judge at an interlocutory hearing that they routinely required parties to re-plead straightforward money claims which had been issued online in the County Court Business Centre, given the limited space provided for Particulars;
  • time-sensitive applications being returned by the court with the reason given (wrongly) that the incorrect court fee had been paid; and
  • being told by the court in a long-running and much delayed case that the file had been lost and that the solicitor had to email the court to ask it to look for it.

These are, unfortunately, by no means exceptional examples and the situation is only likely to worsen as the courts’ resources are stretched to breaking point.

Litigants in Person

Cuts in funding, together with the increase in the small claims threshold, have led to a significant increase in litigants in person (LIP). This has further clogged the court system as judges are forced to deal with applications brought about by failures to comply with the CPR, increasing costs for represented parties.

Moreover, solicitors often face issues with their own clients, who may misinterpret the solicitor’s efforts not to gain an unfair advantage as being an attempt to advise and assist the unrepresented party. Further, where a LIP’s conduct has forced up the cost of proceedings, where does the represented party stand with regard to recoverability of disproportionate costs which were reasonably and necessarily incurred? It would seem that these are costs which the client will have to take on the chin – a penalty for seeking legal advice when their opponent did not.

Costs Budgeting

There is no doubt that, in the new landscape, it is more costly and lengthy to pursue a case to trial. Indeed, the recent New Law Journal/London Solicitors Litigation Association Litigation Trends Survey reported that 85% of respondents felt that costs budgeting had increased the cost of litigation. This figure was up from 69% in August 2013, shortly after the reforms were introduced. It seems that, in the short term at least whilst practitioners become more familiar with the budgeting process, the reforms have had the opposite effect to that which was intended.

Unfortunately, much of the cost of litigation is front-loaded prior to the first CCMC, during the period in which a high proportion of claims usually settle. Regardless of the introduction of Precedent H, it remains an extremely difficult exercise to accurately estimate the cost of litigating a claim to trial. Each case is, of course, fact specific, and costs are influenced by factors which are not easily quantifiable at the outset, such as the nature of the client and the conduct of the opponent. It remains to be seen, therefore, whether budgeting will clog the system further with applications to vary as parties realise that their initial budgets were insufficient.

The budgeting process has been further complicated by the widely differing attitudes adopted by the judiciary at the CCMC. These attitudes range from a reluctance to get involved in the process at all, to something akin to a detailed assessment of the costs included in the budget. Of course, when facing costs capping orders, solicitors face the age-old problem that the majority of judges are practising or ex-barristers, a number of whom do not have a proper appreciation of the work undertaken by solicitors and the cost involved. Indeed, one practitioner recently reported that a judge had refused to allow any costs within the budget for the disclosure process as there did not appear to be any relevant documents – displaying a staggering lack of understanding of the solicitor’s role in disclosure.

What Can I Do?

So, what can solicitors do to mitigate against delays and increasing costs?

Approaching Costs

When it comes to costs budgeting, consider taking the following steps.

  • Most importantly, ensure clients are fully informed of the process and its implications at the outset. This can focus minds on the importance of both providing documents at an early stage and giving timely instructions.
  • Where possible, carry out the majority of the disclosure exercise and even preparation of witness statements at a very early stage to ensure that such costs do not fall within the remit of any costs management order. This will, of course, mean front-loading of costs for the client. Some practitioners are adopting this approach within Precedent H, so that they fall outside the scope of costs which the court has jurisdiction to manage. However, many judges are alive to this and responding by reducing the post-CMCC costs within the budget.
  • Keep a separate detailed note justifying the time included at each stage so that, if questioned at the CCMC, evidence is readily available to justify the budget.
  • Give serious thought to the disclosure menu provided at CPR 31.5(7). Many solicitors are defaulting to agreeing standard disclosure in the majority of cases. Considering the appropriate disclosure order at an early stage can result in significant cost savings.
  • Consider instructing a costs draftsman to assist with preparation of Precedent H. This can be less costly than the solicitor preparing the document themselves and, in the event the budget is manifestly wrong, the solicitor (and client) have the benefit of the draftsman’s PII. Of course, this is not an excuse to delegate authority entirely – the solicitor must have input into the preparation of the budget.

Handling Delays

With regard to the delays faced in pursuing litigation, unfortunately, there are fewer proactive steps a solicitor can take. But you may want to consider taking the following action.

  • File documents electronically where possible, ensuring compliance with the CPR and recent guidance issued by the CCMC when doing so. This, together with refraining from filing multiple copies of documents, will assist in reducing the court’s workload.
  • Maintain a regular dialogue with the court. From personal experience, a polite letter pointing out the injustice to the client of having to wait many months for an interim hearing in a fast-track case has resulted in an expedited listing on more than one occasion.

Ultimately, delays are likely to remain, at least in the medium term, and so solicitors will need to focus on managing clients’ expectations and utilising alternative dispute resolution wherever possible. Of course, if we cease using the courts, then the delays will inevitably reduce!

For further information on this article please contact Rachel Crookes on 0113 3993460 or rachelcrookes@hlwkeeblehawson.co.uk

This article first appeared in the Civil Justice Section of the Law Society newsletter, December 2014. For more information on the Civil Justice Section, please visit http://communities.lawsociety.org.uk/civil-justice/.


 

 

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