Civil

The Chancery Bar Association has published a detailed 88-page response to the preliminary Jackson Review into civil litigation costs. It recommends that judges take a greater role in case management and make more “bold” decisions about direction, scope of disclosure, witness statements and suchlike. It cautions against extending the current range of fixed costs as this would impose an unfair burden on successful litigants. 

Plans are underway for a delegation comprised of representatives from both the Bar Council and Law Society to visit Shanghai, Hangzhou and Guangzhou the week beginning the 2 November to hold seminars on commercial areas of law in conjunction with regional bar associations. The visit will also be an opportunity to meet with local law firms and the alumni of the Lord Chancellors Training Scheme, who frequently hold senior positions within Chinese law firms. 

The Bar’s delegation will be visiting another city in the Guangdong region (likely to be Shengzen) the following week to hold additional seminars and networking events to raise awareness of the expertise of the English Bar and how it can be utilised by Chinese lawyers. 

Referral fees lead to bad service and should not be permitted for barristers or other lawyers, while putting a limit on costs in advance is “neither necessary nor appropriate”, the Bar Council has said in its response to the Jackson review on the costs of civil litigation.
Claimants should continue to be able to recover 100 per cent of their damages award and should not see those damages reduced by unrecoverable but reasonably incurred costs, according to a Bar Council working group, chaired by Michael Todd QC, who led the response. The general rule that the loser pays the winner’s costs was “fair and effective”, the group concluded.
On case management, the group said there was no single approach that was appropriate and it was important instead to have a flexible system. 

Two regulations have recently been adopted establishing procedures for the negotiation, conclusion and variation of bi-lateral agreements between Member States and third countries, on respectively, applicable law in contractual and non-contractual obligations; and on jurisdiction, recognition and enforcement of judgments and decisions in family law areas. 

See: http://register.consilium.europa.eu/pdf/en/09/st10/st10250.en09.pdf 

Lord Clarke, the Master of the Rolls, has urged members of the judiciary to support Lord Justice Jackson’s preliminary review of civil costs and costs management pilot in Birmingham. The aim is to reduce costs and “realise the Woolfian dream”, he said in a speech to the Designated Civil Judges’ Conference in June. He also expressed a hope that costs management would soon be piloted in defamation cases. 

In June, the Council formally asked the ECJ for a ruling on the compatibility with the EC Treaty of a possible future Agreement creating a Unified Patent Litigation System (“UPLS”). The incoming Swedish EU Presidency will support this. 

http://ec.europa.eu/internal_market/indprop/docs/patent/recommendation_sec09-330_en.pdf 

Desmond Browne QC pays tribute to the people involved in drafting the Bar’s consultation paper responses 

In Case C-243/08 the ECJ held that in the area of consumer protection, national courts are not limited merely to ruling on the possible unfairness of a contractual term, but must also themselves examine that issue, where requisite legal and factual elements are available to them to do so. 

See: http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-243/08 

Lord Justice Jackson has recognised the advantages of third party funding in his interim report on civil costs. The Bar needs to be aware of this mechanism, believes Timothy Mayer 

Work is continuing on the Bar’s proposed self-funding civil justice scheme to “deal with nuts and bolts” ahead of Lord Justice Jackson’s final recommendations on litigation costs.