The early bird catches the worm: Survival in the new legal landscape
Following the Court of Appeal ruling in late 2013 in the notorious “plebgate” scandal in which former Conservative chief whip Andrew Mitchell was accused of calling some police officers plebs during a row in Downing Street, lawyers for Mr. Mitchell in his libel action against The Sun newspaper, were told that they would not be granted relief from sanctions for filing evidence and costs budgets late at Court; a judgment met with widespread criticism.
The Mitchell ruling as it is now known in effect meant that even if Andrew Mitchell won his libel case, The Sun would not have to pay his legal fees; his lawyers had submitted a costs budget which was reduced by £500,000 at the High Court, which view was upheld upon challenge by Mitchell’s lawyers at the Court of Appeal, capping the fees they could charge to £2,000.
Lawyers were up in arms over this judgment but it rightly required them to assess risks thoroughly before taking on a case and to get organized early. For clients it means picking the right lawyers who will ensure that the outcome is not just a hollow victory and a big hole in your pocket where your opponent’s money should be.
The judgment has arguably turned court administration into a barrier to justice in some cases, with the potential for valuable evidence or legitimate costs to be rejected or deemed inadmissible, simply by virtue of being filed with the court too late. This is one of the most significant reforms to court rules introduced by Mr. Justice Jackson in April 2013 requiring litigators to prepare a detailed costs budget at the start of every case and to adhere to it.
In essence, the Jackson reforms require judges to put the interests of the justice system as a whole ahead of the pursuit of a fair outcome in individual cases – and that has been deemed harsh by many commentators across the legal sector and beyond, and by the Court of Appeal itself.
What are the Jackson reforms?
The overriding objective of the Jackson reforms, are to enable the court to deal with cases justly and at proportionate cost while enforcing compliance with Court rules, practice directions and orders.
Significantly, this can mean that admissible evidence becomes inadmissible if it is not filed correctly – or if it is filed late – and that genuine costs budgets may be rejected if they are not filed in time.
Non-compliance in one case which has a ripple effect in other parts of the justice system – is what the new, low-tolerance regime introduced under the Jackson reforms is designed to tackle.
In its ruling in the Mitchell case, the Court of Appeal conceded that this may appear harsh against individuals, but said a strong stance is required now, in order not to undermine the cultural shift being attempted, stating:
“If we were to overturn the decision to refuse relief, it is inevitable that the attempt to achieve a change in culture would receive a major setback.”
What does this all mean for clients?
The upshot of all of this is that it is important to instruct a lawyer early to prepare your case properly and thoroughly.
If you fail to do so, and your solicitors do not advise you properly, you risk falling foul of the Mitchell ruling, leading to important evidence and costs budgets being struck out; which is likely to harm if not destroy your case.
This could directly impact on the affordability of pursuing a case, and could jeopardise your chances of finding representation, if the costs perspective makes your case too risky for a new lawyer to take on.
For clients and solicitors alike, it means early compliance is the key to intelligent survival in any court action, if justice is to be done without any unexpected and unwelcome negative outcomes.