The Jackson Report

Issues facing the Chancery Bar

1.         CFA’s
 

(a)        Success fees and ATE insurance premiums should cease to be recoverable from unsuccessful opponents in civil litigation. (para 2.2, xvi)
 

(b)        Qualified one-way costs shifting is introduced for certain categories of litigation in which it is presently common for ATE insurance to be taken out. (paras. 2.6 -2.7, xvii)

(c)        In fast track cases there be a dual system whereby costs are fixed for certain types of cases and in other cases there is a financial limit on costs recoverable. (para. 2.9, xviii)

(d)       Establishment of a Costs Council to review fast track fixed costs and other matters. (para.2.11, xviii)

2.         Other Funding Issues
 

(a)        Lawyers should be able to enter into contingency fee agreements with clients for contentious business provided that certain safeguards are met. (para.3.3,xviii)
 

(b)        The use of Contingency Legal Aid Funds and Supplementary Legal Aid Schemes be kept under review. (para. 3.4, xix)

3.         Indemnity Principle

(a)        The common law indemnity principle should be abrogated. (para. 4, p.463)

4.         Third Party Funding

(a)        A satisfactory voluntary code, to which all litigation funders subscribe, should be drawn up. (para. 11, p.464)

(b)        Third party funders should potentially be liable for the full amount of adverse costs, subject to the discretion of the judge. (para.13, p.464)
 

5.         Intellectual Property Litigation

(a)        Recommendation that the Patents County Court be reformed to provide a cost effective environment for IP disputes. (para. 5.1, xx)

(b)        After the reformation of the PCC, the Guide should be amended to give clear guidance on the requirements for statements of case. (para. 36, p.466)

(c)        There should be a small claims track in the PCC for IP claims with a monetary value of less than £5,000 and a fast track for IP claims with a monetary value of between £5,000 and £25,000. (para.37, p.466)

(d)       One or more district judges, deputy district judges or recorders with specialist patent experience should be available to sit in the PCC in order to deal with small claims and fast track cases. (para.38, p.466)

(e)        There should be consultation in order to ascertain whether there is a support  for either an IP pre-action protocol or the Guide to give guidance regarding pre-action conduct. (para.39, p.466)

6.         Small Business Disputes

(a)        Recommendation that a High Court judge should be appointed as a judge in  charge of the Mercantile Courts. (para. 5.3, xx)

7.         Chancery Litigation
 

(a)        CPR Part 8 should be amended to enable actions to be assigned to the fast track at any time. (para.5.6, xxi and para.3.3, p.285)
 

(b)        Overall limit upon the costs recoverable in Chancery fast track cases. (para.3.6, p.286)

(c)        Change the rules and practice direction to provide that Beddoe applications will be dealt with on paper save in exceptional cases. (para.4.9, p.287)

(d)       The amount of costs deductible from a trust fund or estate should be set at a proportionate level at an early stage of the litigation. (para. 4.5 and 4.6. p.287)

(e)        Recommendation that there should be developed a scheme of benchmark costs for routine bankruptcy and insolvency cases. (para. 5.6, xxi and para.5.6, p.290)

(f)        Costs management procedures proposed by the working party should be considered by the Insolvency Rule Committee in relation to the costs of more complex insolvency proceedings.(para. 5.10, p.292)
 

(g)        Rather than reverse Agassi a suitable body of tax experts should become an approved regulator within section 20 of the Legal Services Act 2007. (para.4.13, p.288)

8.         Collective Actions

(a)        Recommendation that costs shifting should remain for collective actions but that the court should have the discretion to order otherwise if this will better facilitate access to justice. (para.5.12,xxii)

9.         Controlling the Costs of Litigation

(a)        Substantial parts of the Practice Direction – Pre-Action Conduct be repealed. (para. 6.2, xxii)

10.       Disclosure

(a)        Solicitors, barristers and judges be given appropriate training on how to conduct e-disclosure effectively. (para.77, p.469)

(b)        A new CPR rule 31.5A should be drafted to adopt the menu option in relation to (a) large commercial and similar claims and (b) any case where the costs of standard disclosure are likely to be disproportionate. (para.78, p.469)

11.       Witness Statements and Expert Evidence

(a)        Case management measures to place controls on the content or length of  statements and cost sanctions for unduly long statements/evidence. (para. 6.7, xxiii)

12.       Case Management

(a)        Recommendations to:

(i)         allocate cases to judges with relevant expertise;

(ii)        ensure that as far as possible a case remains with the same judge;
(iii)       case management directions are standardised; and
(iv)       ensure that case management conferences and other interim hearings are effective. (para. 6.9, xxiii and paras. 81 to 88, p.469-470)

13.       Costs Management

(a)        Lawyers and judges receive training in costs budgeting and costs management. (para. 6.11, xxiv and para.4.2, p.286)

(b)        Rules be drawn up which sets out a standard costs management procedure which judges would have a discretion to adopt. (para. 6.11, xxiv)

(c)        Part 6 of the Costs Practice Direction be amended to require parties in Part 8 proceedings to lodge costs estimates 14 days after the acknowledgment of service (if any) has been filed. (para.4.15, p.288)

14.       Part 36 Offers

(a)        Where a defendant fails to beat a claimant’s offer the claimant’s recovery should be enhanced by 10%. (para 6.12, xxiv)

(b)        The effect of Carver v BAA plc [2008] EWCA Civ 412 should be reversed. (para.93, p.470)

15.       Other Chancery Issues

(a)        The Law Society and the ChBA set up a working group to consider other issues raised in the Preliminary Report with the aim of reporting by summer 2010. (para. 4.14, p.288)