Lord Justice Jackson's Retirement Speech


This is the transcript of Jackson, LJ's speech, two days before he retired. Answers on a postcard please....

WAS IT ALL WORTH IT?

LECTURE BY LORD JUSTICE JACKSON TO THE CAMBRIDGE LAW FACULTY ON 5th MARCH 2018

CONTENTS

1. Introduction 2. Work over the last ten years 3. Have the reforms done any good?

4. Conclusion

1. INTRODUCTION

1.1 This lecture. Professor Andrews has asked me to give a lecture on civil justice reform today – just 48 hours before I retire. This is, therefore, an appropriate moment to stand back and review my work in this area over the last decade. The ineluctable question is whether that work has achieved anything of lasting value. I shall try to answer that question objectively.

1.2 Definitions. In this lecture I use the following definitions/abbreviations: “ADR” means alternative dispute resolution.

“ATE” means after-the-event insurance.

“CCMC” means costs and case management conference.

“CFA” means conditional fee agreement.

“CJC” means Civil Justice Council.

“CPR” means civil Procedure Rules.

“DBA” means damages-based agreement.

“Final Report” means Review of Civil Litigation Costs Final Report. “FRC” means fixed recoverable costs

“IPEC” means Intellectual Property Enterprise Court, formerly Patents County Court. “LASPO” means Legal Aid, Sentencing and Punishment of Offenders Act 2012.

“MR” means Master of the Rolls.

“ODR” means on-line dispute resolution.

“PI” means personal injury.

“RJ” is a reference to myself.

“Supplemental Report” means Review of Civil Litigation Costs Supplemental Report. “TPF” means third party funding.

1.3 Neither glamorous nor sexy. Every judge undertakes extra-judicial work: chairing or serving on committees, promoting law reform, giving lectures on jurisprudential matters, holding lofty supervisory roles and so forth. To spend ten years reforming the rules of procedure in an effort to reduce litigation costs is about as unglamorous as it gets.

1.4 Will reducing litigation costs make lawyers love you? No. Lawyers generally don’t like change and they particularly dislike anyone meddling with costs. Therefore, the task allotted to RJ was bound to, and did, generate quite a few irate letters to newspapers and numerous onslaughts in the legal journals. Almost everyone perceives the public interest as residing in a state of affairs which coincides with their own commercial interests. That is not dishonesty or disingenuousness. It is just human nature.

1.5 Has anyone been systematically monitoring the effectiveness of the reforms? No. In November 2013, the CJC held a conference at UCL entitled ‘Justice after Jackson’, at which several speakers called for such an evaluation to take place. What was needed was for a university or similarly neutral body (a) to gather the contemporaneous evidence and (b) to make an objective assessment of the successes and failures of the reforms. Unfortunately, no university or similar body stepped forward to do that.1 Instead there has been a stream of journal articles, usually written by people who dislike this or that aspect of the reforms. For obvious reasons, no-one who is content would dream of writing an article to say that.

2. WORK OVER THE LAST TEN YEARS

2.1 Summary. Leaving aside the day job (hearing appeals), the following is a summary of events over the last ten years: Spring 2008: MR tells RJ of impending appointment to the Court of Appeal + brief to tackle the costs of civil litigation

October-December 2008: Setting up Costs Review, preliminary meetings etc

January-April 2009: Phase 1 of Costs Review + publication of Preliminary Report

May-July 2009: Phase 2 of Costs Review – consultation, including twelve public seminars

August-December 2009: Phase 3 of Costs Review – writing Final Report January 2010-April 2012: Judicial Steering Group (“JSG”) chaired by MR oversees implementation. RJ acting under JSG supervision sets up pilots and working groups; prepares draft rules and practice directions for consideration by the Rule Committee, to implement the proposed reforms. RJ and others give a series of ‘Implementation Lectures’2 to explain the proposed reforms. Those reforms which require primary legislation are included in Part 2 of LASPO. May 2012-October 2013: Following an operation and medical treatment RJ drops out of the process. Ramsey J takes over RJ’s role. In April 2013 the reforms come into force. RJ resumes sitting full time in 2013, but is not involved in civil justice reform.

2014-2016: RJ returns to the fray (following Ramsey J’s retirement) and delivers lectures, monitoring the progress of ‘his’ reforms. These lectures call for amendment of the DBA regulations, more resources for the County Court and the civil justice centres, improvements to costs management, getting a move on with the new form electronic bill of costs, ending the (indefensible) exemption for insolvency cases from the CFA/ATE reforms, better use of the new disclosure rules, a more sensible approach to relief from sanctions and extension of FRC. January-July 2017: RJ conducts Review of FRC (at the request of the Lord Chief Justice and MR) with the help of fourteen assessors. Chairs five public seminars in Leeds, Manchester, London, Birmingham and Cardiff. 31st July 2017: RJ publishes Supplemental Report on Fixed Recoverable Costs, recommending: (i) streamlined procedures and FRC for (a) the whole of the fast track, (b) less complex claims above the fast track but below £100,000, (c) clinical negligence claims up to £25,000; (ii) a pilot of capped recoverable costs for business and property cases up to £250,000; (iii) extension of the Aarhus rules to all judicial review claims. October 2017-March 2018: Co-writing the second edition of The Reform of Civil Justice3 (to be published by Sweet & Maxwell on 21st March) for the purpose of promoting proper understanding of the reforms.