Reforming the Civil Justice System: SCL Annual Lecture 2012 Report

March 27, 2012

I volunteered to report on this Lecture, having missed a few years in the job, because I had seen Sir Rupert Jackson in action before and had been mightily impressed. He is entirely appropriate for such an organisation as SCL because he is scarily akin to a computer himself. This is not a disparaging comment. My point is that I have never come across someone so adept at absorbing information processing it, analysing it, evaluating it and popping out highly reasoned conclusions whether firm or provisional. And his presentation is both entertaining and witty.  I saw him in action during the consultation process for the Costs Review and knew that the ultimate report would be thorough and comprehensive. I suspected the Annual Lecture would be a masterpiece of distillation. I was right. 

There were a couple of support acts, Clive Davies of Fujitsu Services, the SCL Chair, gave an initial welcome and Peter Watson of Allen & Overy, the event hosts, gave a further welcome, regaling us with the anecdote, beloved of lawyers of a certain age, about the days when IT meant an IBM golfball typewriter. Don’t get me started on the telex young man. 

We then had Professor Richard Susskind OBE, SCL’s President, telling us that the speaker was the hardest working and the most intelligent man he knew and that the report in its undertaking and output was prodigious. Which rather confirmed my expectation for the lecture. 

Sir Rupert stepped down into the body of the audience and let forth. He had 50 minutes and I suspected that, come what may, he would wind up 50 minutes later. In between he treated us to a summary of the progress of his recommendations and the reasoning behind them. He is not a person conspicuously afflicted by self doubt and he left the audience in no doubt that he was right. Notably, he did not harp on about the need for technology to support the requirement for analysis of electronically stored information, modestly assuming that the present audience knew a lot about the issues. 

The most controversial part of the reforms involves funding. His point was as follows. In various jurisdictions around the world, there were two main drivers of increased costs. These were (a) the advent of electronic communication and storage of business records and (b) the increased interlinking of contracting and related parties. Most jurisdictions had dealt with these in broadly similar way such as budgeting, restricted disclosure and tougher case management. Here the Woolf reforms of the late 1990s were fine in themselves but they coincided with what Sir Rupert called a “self inflicted wound” which unintentionally drove up costs, namely the conditional fee agreement regime. As he said, it was designed to provide access to justice in personal injury cases but had ‘extended its pernicious tentacles into commercial litigation’. 

The fault with conditional fees was that rather than take on bad cases to balance good cases, the lawyers involved only took on good cases and spent all their time on them so as to increase recoveries. This had led to defendants’ insurers challenging agreements, the infamous costs wars of the early 2000s, the horrific development of a specialist costs bar and the spectre of litigation about costs of costs. This is not the time to comment and analyse and, as mentioned, Sir Rupert is not given to doubt: he has recommended the abolition of recovery of success fees and after-the event insurance premiums and this will be implemented in the bizarrely named Legal Aid, Sentencing and Punishment of Offenders Act. He has recommended a regime of damages-based fee agreements – that is contingency fees albeit extremely tightly regulated – and the necessary legislation and rule changes are on foot to achieve this.  

The point about contingency fees which attracts Sir Rupert is that they do not penalise efficiency: lawyers do not study the experts’ reports for hour after hour in the hope of persuading a costs judge to permit recovery and a 100% uplift. Of course the devil will be in the detail of ‘damages based agreements’ and the subordinate legislation will hedge them about with restrictions. 

The various other reforms were summarised, the main message being that solicitors will need to develop IT systems to accommodate increased case management and budgeting requirements so that reports on actual and estimated costs can be produced at various levels of detail at the drop of a hat. And, right at the 50 minute mark, Sir Rupert finished. 

So to questions. Two questioners made themselves known. Their questions, whilst articulate and sincere, focused on specific issues. As the first questioner went on at some length, the audience saw the Chair panic slightly: a series of interlinked questions were being raised at the same time as points were being made and a mere mortal would have lost track and control. Not Sir Rupert: once the questioner had finished, the issues were expertly distilled isolated, processed, analysed and the answers presented in perfectly structured form. If at equal length to the question. The second question concerned databases of damages in personal injury cases. Sir Rupert responded in articulate and compelling terms. 

Roger Bickerstaff of Bird & Bird wrapped up proceedings behind the Lord Mayor’s carriage and the audience repaired for the usual refreshments.


Richard Harrison is a partner at Laytons Solicitors LLP, London SE1: