Litigation

Lord Neuberger, the Master of the Rolls, has called for mediation and alternative dispute resolution (“ADR”) to be made a part of every lawyer’s education.

Plans to cut conditional fee agreements (“CFA”) success fees for libel cases by up to 90 per cent have been dropped owing to lack of Parliamentary time. 

The controversial plans, which were opposed by many claimant libel lawyers, would have capped the success fee chargeable in CFAs from a maximum 100 per cent to ten per cent. The reforms had previously failed to pass the committee stage in the House of Commons after four labour MPs joined opposition parties to vote it down. 

A 35 per cent cap has been imposed on contingency fees in employment cases. 

Siobhan Grey discusses the Gray’s Inn Seminar on press freedom and the Select Committee Report “Press Standards, Privacy and Libel” 

The incorporation of the European Convention on Human Rights into English domestic law has had a dramatic effect on the perpetual conflict between media freedom and media intrusion into private life; a conflict which is unremitting and which sometimes seems irreconcilable. The rights enshrined in art 8 (respect for private life, including reputation) and art 10 (freedom of expression, including press freedom) are of equal value, but how can a judge strike a fair balance between them? This dilemma has been given greater urgency by the technological developments that are changing the face of the media. An injunction obtained in one national court in one jurisdiction can quickly be rendered ineffective by the new virtual, stateless and unregulated chaos of information exchange, as the Twitter campaign in the recent Transfigura case revealed. 

The Justice Secretary, Jack Straw, has reduced the maximum success fee that lawyers can charge in defamation cases from 100 per cent to 10 per cent.

Sir Brian Neill, Richard Rampton QC, Heather Rogers QC,
Timothy Atkinson, Aidan Eardley
LexisNexis, 3rd edition (Aug 2009), £195.00, ISBN 978-0406178312 

Since the first edition of Duncan and Neill in 1978 the libel landscape has changed dramatically and looks set to continue doing so. Juries are no longer “in the position of sheep loosed on an unfenced common, with no shepherd” as Lord Bingham famously described them. More detailed directions are now commonplace and jury awards correspondingly smaller than in their zenith in the 1980’s; to the considerable relief of the popular press.  

Many of Lord Justice Jackson’s recommendations will have a direct impact on the Bar’s way of life, warns Stuart Sime 

Sir Rupert Jackson’s Review of Civil Litigation Costs: Final Report (“the Review”) was published on 14 January 2010. It will have profound effects on the conduct of litigation and the remuneration of lawyers. Without doubt it is the most important report in the area of civil law since Lord Woolf’s report on Access to Justice in 1996. Like the best reports in recent years (Lord Neuberger’s report on Entry to the Bar, 2007, is another example), Sir Rupert recognises that systemic problems cannot be cured by single big point remedies. 

How have practitioners responded to the Final Report? Counsel rounds up some of the comments made on the NLJ Jackson webcast 

David Greene 

NLJ Consultant Editor & head of the litigation & dispute resolution team at Edwin Coe LLP. NLJ Jackson webcast participant 

“A lot of solicitors get their business from referral fees, agencies and management companies. If they didn’t get that business you would probably find that they would have to go out and advertise and spend the money in that way, so I don’t think it is a straight game in terms of referral fees. 

The EP’s Legal Affairs Committee (JURI) is preparing an own-initiative report responding to the Commission’s recent Communication on enhancing the enforcement of Intellectual Property Rights COM(2009)467). A draft report should be available by the time of reading, with adoption in Plenary planned for April. For more information, see: http://www.europarl.europa.eu/oeil/file.jsp?id=5817632

Lord Justice Jackson has recommended sweeping reform of civil litigation, including raising civil damages awards by ten per cent and introducing US-style contingency fees. 

Jackson LJ’s eagerly-awaited 584-page Final Report into civil litigation costs, published in January, contains a number of controversial suggestions.Conditional fee agreements (“CFAs”) or “no win, no fee” cases should continue to be used but success fees and after-the-event (“ATE”) insurance premiums should cease to be recoverable from unsuccessful opponents, he recommends. This means that any success fees will have to be borne by the client, not the opponent.