Tougher approach to case management breaches in new civil procedure rules
Litigation must be 'conducted efficiently and at proportionate cost'
The new civil procedure rules, published yesterday, will impose a tougher regime on lawyers who fail to comply with case management orders.
David Marshall, managing partner of Anthony Gold, said lawyers who apply for relief from sanctions under the new rules will no longer be able to take advantage of a list of extenuating circumstances.
Under section 1 of the Civil Procedure (Amendment) Rules 2013, replacement rule 3.9 (l) states the court will “consider all the circumstances of the case”, but also the need “for litigation to be conducted efficiently and at proportionate cost” and “to enforce compliance with rules, practices, directions and orders”.
However, Marshall said the position had moved in favour of lawyers who fail to meet time limits on costs budgeting.
Instead of a blanket limit of 28 days after service of the defence, parties must file their costs budgets by the date specified in the allocation questionnaire under rule 26.3(l), or, if no date is specified, seven days before the first case management conference.
The new rule on proportionality in costs, set out in clause 44.3, which has already been the subject of much debate, will not apply to “cases commenced before 1 April 2013”, but Marshall said it would apply to all previous work a solicitor may have been doing until that time before proceedings are issued.
He said the rules on QOCS, set out further into clause 44, “broadly reflect the ministerial statement last summer”.
Former justice minister Jonathan Djanogly said in a ministerial statement in July that there would be no means test for personal injury claimants seeking protection by QOCS, but claimants who failed to beat part 36 offers to settle by defendants would lose protection.
Marshall added that there was a “slight surprise” in that QOCS would not apply to pre-action disclosure.
Clause 44.13 makes it clear that QOCs do not cover applications for pre-action disclosure or applications ‘where the claimant has entered into a pre-commencement funding arrangement’.