Time is money

One of the key aspects of Lord Justice Jackson's costs reforms is the idea that judges should take a more robust approach to case management and thereby help to deliver justice at a proportionate cost.

As Jackson LJ observed in his final report, case management by the court is hardly a new concept and was one of the cornerstones of the Woolf reforms. However, as he concluded, in some areas case management is not satisfactory and reforms are needed.

A number of pilot schemes are now under way which involve forms of case management. Initial feedback suggests that these are working well. However, the problem with case management is that it requires sufficiently tough decisions from judges for it to be effective. In the recent monster costs litigation that was Motto v Trafigura (Solicitors Journal 155/39, 18 October 2011) the parties' attention had been expressly drawn to the remarks of the president of the Queen's Bench Division, Sir Anthony May, in Khader v Aziz [2010] EWCA Civ 716. The guidance given in that case concerned the tendency to overburden the court and other parties with skeleton arguments that are not skeleton, and with volumes of unnecessary documents and authorities, and how judges should be prepared to use the powers available to them to disallow the cost of the preparation and use of excessive written material.

Notwithstanding the same, for the purposes of the preliminary issues hearing the costs judge was presented with the defendants' skeleton argument, including supporting schedules, which ran to more than 1,000 pages. This was in addition to a witness statement dealing with the key issues, which, with exhibits, ran to more than 3,000 pages. The claimants' skeleton ran to 73 pages, and their supporting witness statements, including exhibits, ran to 923 pages.

The parties to the Motto litigation settled the costs disputes before a final detailed assessment hearing and we will therefore never know what, if any, costs sanctions might have been imposed on the parties.

Applying penalties

I am grateful to Professor Dominic Regan for recalling how Chris Tickle, who was the Bristol regional employment judge, ran his court. His approach pre-dated Jackson by a decade. A standard direction he issued was to limit the number of documents in the tribunal bundle, typically to 50 pages a party. Those who foolishly ignored this explicit direction would receive a phone call from the great man: 'Listen: this is me ripping pages 51 onwards out of your bundle.' That is robust case management.

Jackson LJ proposes: 'To the extent that case management does not prevent parties from producing prolix witness statements, costs sanctions should be applied against the party responsible for adducing the prolix or irrelevant statements. A simple example (which involves the use of case management) is where a court has ordered at a CMC that witness statements are not to exceed ten pages. If a party serves a witness statement that is, say, 30 pages in length, there should be a presumption that the party is to face an adverse costs order in relation to the witness statement, unless there are good reasons for the court not to make such an order.'

Jackson LJ also identified the problem in detailed assessment proceedings of prolixity in points of dispute and replies. A read through past minutes from the Supreme Court Costs Office's (as it was) costs practitioners group highlighted this same problem in March 2007. The minutes record: 'Master Simons said that over-lengthy points of dispute, which ran into many pages and unnecessarily recited case law, continued to cause problems. Although the costs practice direction emphasised that points of dispute should be concise, this was not being adhered to in practice. The same was often true of the 'narrative' at the start of bills of costs. District Judge Oldham said that the same problem was faced in many county courts. The meeting felt that one of the main reasons for this was that it was now all too easy to 'mass produce' points of dispute by word processor. The solution was less clear. The imposition of costs sanctions at the assessment hearing has not succeeded in discouraging prolixity. However, for the moment, this seemed to be the only control available to costs judges and district judges.'

Time to hear the paper ripping?