In two recent articles to which I have already referred, His Honour Judge Simon Brown QC, the judge in charge of the Mercantile Court in Birmingham, has sought to set out his views, (some might go so far as to say his tips) on what to expect from the new regime being introduced for disclosure and case and costs management when the relevant provisions of LASPO come into effect in April next year:
- Costs control, New Law Journal, 5th April, 2012
- Costs control (2), New Law Journal, 8th June, 2012.
All serious practitioners in the contentious area of the law should read the articles in full and acquaint themselves of the new rules and how they will operate. However, to assist in the familiarisation process I thought I would set out in brief what the judge has said so that this piece can act as an aide memoire for the future conduct of litigation. As they say in all the best disclaimers, the views expressed here are the views of the author (and possibly of Simon Brown) and there is no substitute for reading the real thing!
In no particular order the comments which stand out for me are:
- Judges are to be docketed and trained by the Judicial College, something promised in the past and now to be delivered.
- No rubber stamping of cosily agreed orders at the CMC.
- Client approval will be required for budgets which are to be exchanged and filed in due time. Lawyers will have to be prepared to justify them before the judge will approve them.
- Wasted costs orders will be made in default.
- In considering costs the judge will have regard to the last approved budget and will not depart from it unless satisfied that there is a good reason to do so.
- If not approved, the budget/claim for costs will be submitted to a detailed assessment before a costs judge with the cost of the assessment payable by the party in default.
- US style Peruvian Guano discovery will not be allowed here unless so ordered. Not new here since the advent of standard disclosure and this stance now follows the practice in New Zealand and Australia.
- We have had PD 31B and the EDQ; now we are going to have menu options and the amended CPR 31.5. There are to be six options in the menu under CPR 31.5(4) limiting disclosure to what is necessary while CPR 31.5 (5) sets out how disclosure shall be given.
- US style meet and confer comes with CPR 31.5 (b). At least seven days before the CMC and at any other time ordered by the court, the parties must meet or speak on the telephone to discuss and seek to agree a proposal for disclosure that meets the overriding objective.
- Disclosure is for the benefit of the judge and not the parties, the rationale being that the judge shall determine the evidence needed to try the issues before the court.
- Judges will now use the case management powers they are given by CPR 1.4.
- A new precedent HB to PD 51 G in electronic form will be used to adjust budgets.
The pace is certainly hotting up, and I am not referring to the Olympics! The gloomy scenario is one of adapt or die but I prefer to think the legal profession will embrace these changes and survive and thrive. Millnet will be there to help when needed.