Happy Anniversary, Jackson Reforms!

11 April 2014 by Adrienn Toth

Anniversaries provide a chance for reflection. Whether it’s reminiscing about 40 years with a loved one or remembering that first kiss, reflection is always important. Why? We know intuitively that we learn from experience and from our mistakes so that we can improve ourselves and our relationships.

In a far less romantic setting, the world of edisclosure is celebrating the first anniversary of the Jackson reforms in civil litigation. Reflection was just as important at our breakfast seminar last week, jointly hosted with law firm Hill Dickinson LLP. The theme: what were the biggest impacts of the Jackson reforms a year on from implementation? An impressive panel included His Honour Judge Davies (Manchester Technology and Construction Court), His Honour Judge Bird (Manchester Mercantile Court), Damian Murphy (Barrister, Indicium Chambers) and Geraldine Ryan (Partner - Head of Commercial Litigation Hill Dickinson LLP).

First, the panellists were quick to concede the fact that early predictions on the biggest impacts of Jackson had not held true. Painful early cost budgeting and the handling of cost management in cases were favourites as hot topics a year ago.  Instead, the panel concluded that fear and uncertainty had crept in concerning sanctions for non-compliance with the new rules. Mitchell, of course, had a big part to play here and in reality what the panel have seen is an increase in, often hard-fought, applications for relief from sanction taking up the courts’ time.

Inevitably the discussion quickly moved to what has happened post-Mitchell, concluding that courts are continuing to take  a tougher line on compliance with the new rules. The Judges were satisfied that clear guidance had been provided from the Court of Appeal on how to handle Jackson and the overarching advice for lawyers was to keep on top of schedules, deadlines and more importantly if extensions are needed, to get requests for them in early.

That said, cost budgeting was still a strong topic for discussion and very much seen in a positive light. From the lawyers in the room we heard that cost budgeting brought attention and focus to their clients much earlier in litigation and a better understanding for what they were getting themselves into, especially when considering the methods and costs of disclosure. As a welcome result, the courts have seen an increase in mediation and will always encourage it in order to save on costs.

At last, one prediction that did come true, but was likened to predicting rain in Manchester, was that parties were unlikely to stray from standard disclosure. We have seen little evidence of parties using any of the other options in Jackson’s menu for disclosure. This might be a simple reluctance to change and the view that standard disclosure is the most appropriate method, or perhaps it’s the fear that ‘smoking gun’ evidence would be missed by using other options.

As first anniversaries go, this was certainly an exciting one. Was the intention of Lord Justice Jackson to instil fear and uncertainty into an already complex litigation process?  I think not; it was always the aim to provide direction and focus to the real issues of the case. We are still waiting for the dust to settle on the new rules, but like in any relationship there are bound to be ups and downs along the way.

We will shortly be launching the European version of ediscovery.com, which will have full coverage of all of the UK case law relevant to disclosure, from Mitchell and beyond, in addition to many other European ediscovery resources.  Stay tuned to this blog for more information on the site in coming weeks.