View from the bench | Can the courts avoid the Jackson paper flood?

To case manage properly in the Jackson environment, courts are likely to request a number of documents before any cost and case management has even began. These are:

a) A one-page summary of the Precedent H documents to allow for direct comparison (if a multi-track case). This will set out in a schedule the phases for the litigation and summarise those parties costs. The phases pre-cost and case management are for information only as the costs can only be budgeted going forward. The claimant's solicitor would usually be ordered to prepare this.

b) A chronology, in appropriate cases.

c) A statement of issues.

d) Whether the draft directions are agreed and if not any reason. CPR 29.4 sets out the parties' obligation to agree appropriate directions.

e) A breakdown of the pre-action and issue/pleading costs. Although costs cannot be budgeted retrospectively, a detailed breakdown of these costs in accordance with the phases will help to make costs budgeting orders.

f) The parties' positions on ADR. It is considered important to focus the parties' position on ADR at the earliest possible opportunity.

g) If a breach of any relevant pre-action protocol or the practice direction is alleged, details thereof.

?Therefore, rather than file an allocation questionnaire, particularly in multi-track cases, the court will require each party to file and serve a total of 13 documents including the amended Precedent H post the cost and case management.

Tight deadlines

The deadline for many of these documents will be tight. In the absence of any other order precedent H must be filed and served seven days before any cost and case management hearing.

That does not leave a lot of time for the one page summary to be prepared by the claimant's solicitor.

A failure to comply with a rule practice direction or order after 1 April 2013 takes on greater significance as the amended overriding objective makes clear. The resultant rush too comply therefore has significant resource implications for both court users and the court.

Proper use of technology will be needed to ensure that documents are sent and received properly. Time of arrival may be crucial to an application for relief from sanction if received late given the new test under CPR 3.9 and the amendment to the overriding objective.

In his 18th Lecture in the Implementation Programme, the Master of the Rolls stressed the importance of compliance and referred to the criticism of the tough new approach to relief from sanction. He stressed that the changes are intended to make clear that the relationship between justice and procedure has changed.

In so doing he refers to the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately thus furthering the overriding objective in its widest sense.

At a time when courts have closed, staffing levels have been reduced, counters have reduced opening times and resources already stretched the increasing pressure on solicitors to meet deadlines will no doubt produce tensions. The increase in litigants in person will create its own pressure including the need to explain process. There is already some evidence of this in an apparent increase in security incidents. There is also the risk of abuse of staff as tight deadlines have to be met.

Need for bundles

The implementation of these reforms and the resource implications for all court users appears to call for a new approach on how to deal with these issues. The court and its users will have to consider paper management against the requirements of the rules and any orders. Solicitors who file by posting, faxing emailing and hand delivering the same document already fall foul of the rules. This number of new documents highlights the need for greater efficiency. For some time in family cases a judge's bundle has been available for each hearing, and the Chancery guide highlights the need for bundles.

The problem is compounded by the different dates for filing documents. This may call for consideration of only one or two specific dates, such as with the directions questionnaire or seven days before any cost and case management conference to avoid confusion.

Although time will record the effect of these significant changes it would be a great pity if the court became clogged with paperwork intended to help it become more efficient. That remains in the hands of the court users working with the court service and it is important to address these issues now, during the lull in issue while parties assess the true impact of the changes.