Litigation

Lord Justice Jackson will publish the final report of his eagerly-awaited Review of Civil Litigation Costs on 14 January 2010. An advance copy will be sent to the Master of the Rolls by 31 December 2009.

Lord Hoffmann has spoken out against Law Commission proposals to help individuals seek redress against public bodies. 

Currently, individuals must establish that the public body owes them a specific statutory duty or is in breach of a duty of care at common law before bringing a claim for loss. In January 2009, the Law Commission proposed abolishing this and instead letting individuals claim compensation if the public body has been “seriously at fault” in the exercise of its powers—an entirely new concept in English law.
In a speech on “Reforming the law of public authority negligence”, Lord Hoffmann said: “I think that is an absolutely terrible idea and I hope it will be quietly dropped.” Creating such a liability would add to the financial burdens on the public body. Moreover, public bodies must make choices about spending priorities, therefore asking judges to decide on these choices would be inappropriate, he said. 

The pro bono case of Compton—challenging a decision to close a local hospital—has clarified the law relating to protective costs orders. Guy Opperman explains why pro bono work really can make a difference.  

A court case is like a battle. And a test case, involving nine hearings and 12 judges over two years, is the mother of all military campaigns. So it was with the pro bono epic that culminated in the various decisions in R (on the application of Compton) v Wiltshire Primary Care Trust (see [2008] EWCA Civ 749).  Pro bono provides assistance for those who are unable to afford legal representation. This case in its various forms took two years and multiple hearings. What began as a case protesting about the closure of hospital units in Wiltshire developed into a test case on the extent to which ordinary citizens can use protective costs orders (“PCOs”) to challenge decisions of public bodies. 

Names: Iain Milligan QC and Brian Lee
Positions: Head of Chambers and Senior Clerk
Chambers: 20 Essex Street 

New measures aimed at tackling excessive legal fees in “no-win no-fee” defamation proceedings came into effect from 1 October.
The government has introduced three major changes following its consultation paper earlier this year, “Controlling Costs in Defamation Proceedings”. The new provisions are early notice if “after the event” (“ATE”) insurance has been taken out; a 40-day cooling-off period where, if the defendant admits liability and settlement is reached, the ATE premium will not be payable by the defendant; and a mandatory costs budgeting pilot for defamation proceedings, with close judicial supervision. 

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. 

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. 

The EU institutions are engaged in strenuous efforts to create a Unified EU Patent Litigation system, and within that, to secure an Agreement on the European and Community Patents Court and Draft Statute. To that end, the Commission has produced a working document setting out draft rules of procedure, limited at this stage to procedural rules before the Court of First Instance. 

See: http://register.consilium.europa.eu/pdf/en/09/st11/st11813.en09.pdf The relevant Council working group is to meet repeatedly in the coming weeks, under the enthusiastic watch of the Swedish Council Presidency, to try to reach agreement. 

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. 

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.