Construction Law Today : Construction Lawyer & Attorney : Joshua Glazov : Design Build Contracts, Construction Bankruptcy

• Email This
• Print
• Comments
• Share Link

Most British readers already know that Lord Justice Jackson and his panel of assessors issued an interim report earlier this month in their Review of Civil Litigation Costs. 

The interim report raises a lot of issues that should interest readers outside Great Britain too, especially in other countries with common judicial systems (e.g., the United States, Australia, Canada).  Sometimes stepping outside our own system here in the United States fosters new ideas for solving chronic problems.  The US Navy's adopting the Royal Navy's angled flight decks on its aircraft carriers for safer and more efficient operations comes to mind as a good example. 

In January 2009 British Lord Justice Jackson was appointed to lead a fundamental review of the rules and principles governing the costs of civil litigation. His goal is to identify recommendations for the United Kingdom's Ministry of Justice to promote access to justice at proportionate cost.  The final report is due at the end of 2009.

Lord Justice Jackson emphasizes that the preliminary report is to promote discussion during the consultation period before he and his assessors prepare their final report, So, the interim report focuses on areas where they seek comments from the lawyers and the public at large.  They urge people to submit comments by July 31, 2009.

The following are some of the principal areas of focus in the report:

• Court fees. The report expresses disagreement with the Ministry's policy of full-cost pricing - where litigants pay for the court service they receive. It suggests shifting more costs of the civil justice system from litigants to taxpayers.
• Cost shifting. The report requests comment on whether fee and cost shifting should be abolished in select areas, although it tentatively concludes that cost shifting must remain in some form for most litigation.
  

• Cost shifting. The report requests comment on whether fee and cost shifting should be abolished in select areas, although it tentatively concludes that cost shifting must remain in some form for most litigation.
• Discovery ("Disclosure" in the report). The report identifies methods for controlling the costs of e-discovery. For example, compelling litigants to communicate earlier about  problems that may come up and agreeing on keyword searches. It asks for comments on whether a particular approach to e-discovery has saved or wasted costs in particular cases.
  
  The report advances wide-ranging options for the reform of discovery generally, including:
  

• Making no change to the existing discovery rules.
• Limiting discovery to the documents that a litigant relies on (with the ability to request specific disclosure of other documents).
• Restoring the old "train of enquiry" test.
• For large cases only, is using disclosure assessors, who would be experienced lawyers appointed to assist the court in the discovery process.
• Witness statements and expert reports. The report identifies various ways of reducing the costs associated with witness statements, including:
  

• Imposing penalties for irrelevant evidence.
• Making witness summaries the norm, instead of detailed witness statements.
• Confining witness statements to matters not dealt with in the documents.
• Stipulating a maximum length for statements.
  
  The report also includes a number of proposals on expert reports, suggesting the sequential exchange of expert evidence on liability as standard and a presumption that quantum (i.e., damages) experts should be instructed on a 'single joint' basis.