SCL Comments to Civil Litigation Costs Review

February 6, 2009

Lord Justice Jackson has been appointed by the Master of the Rolls to lead a fundamental review of the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportionate cost. The findings are due to be presented to the Master of the Rolls in December 2009.  

Following a meeting on 13 January at Lovells to take account of the views of SCL members on relevant issues which are the subject of the review, SCL prepared a submission. SCL Trustee Clive Freedman led the SCL response.

The comments make a number of important points and can be read in full here. The comments include the following:

• Initial discussion of electronic disclosure in outline at the first CMC may often be desirable, but if detailed directions are given prematurely, before the important issues in the case have been sufficiently identified, the directions given may prove to be inappropriate, causing excessive costs to be incurred
• There is a perception among court users that few Judges are sufficiently familiar with electronic disclosure, with the problems which it presents, and the solutions which exist to handle it.  As a result, when parties fail to reach agreement and ask the Court for a direction as to how matters should be dealt with, the direction which is given is not always satisfactory.  The Judge may either fail to give a satisfactory direction, or may merely tell the parties to try again to resolve matters by agreement in a spirit of cooperation.  Moreover, if the parties have not yet tried to reach agreement (by having the discussions required by PD31 paragraph 2A.2) the judge needs to be sufficiently informed to be able to take the initiative.
• Consideration should be given to appointing specialist Judges or Masters (either full-time or part-time) to whom applications specifically relating to electronic disclosure can be referred.  Alternatively, parties could consider involving a neutral third-party in their discussions to assist them parties in agreeing a sensible procedure for e-disclosure.
• In lengthy trials time can be saved by the provision of witness statements marked up with hypertext links to the documents referred to.  This should be adopted more often.  The task can be cost-effectively carried out by an outside agency.