Fixed Costs

At last!

Jackson LJ has, despite his fervent wish in his lecture of 29 January 2016, accepted a comission to review fixed costs of civil litigation – per the Judiciary website: the terms being:

  1. To develop proposals for extending the present civil fixed recoverable costs regime in England and Wales so as to make the costs of going to court more certain, transparent and proportionate for litigants.
  2. To consider the types and areas of litigation in which such costs should be extended, and the value of claims to which such a regime should apply.
  3. To report to the Lord Chief Justice and the Master of the Rolls by the 31st July 2017.

This step is a logical follow through from the vast data gathered in precedent H forms filed and we can hope will ultimately reduce overheads (time  recording, drawing schedules, precedent H and bills) and satellite litigation and allow the courts and parties to focus on the dispute itself.

This step can also be expected to bring more litigation into the realms of affordability, a defendant can see clearly what is claimed against it and know what its costs exposure is in advance; likewise a claimant can consider the sums it will need to venture to bring a claim. With any luck this will also help drive the pricing of after the event insurance to a market-led level to meet the fixed risk which will then  be faced.

Whilst any fixed costs regime will inflict some rough justice on the parties, the certainty of the costs being faced should open up access to the courts for more litigants.

Case management in the RBS shareholders litigation

Another reminder that the court will take a robust stance on case management.

In this latest procedural hearing of the RBS Rights Issue Litigation [2015] EWHC 3433 (Ch)Mr Justice Hildyard balanced carefully (after traversing the authorities) whether additional expert evidence should be permitted – and, as he was not persuaded that it would assist the court, refused permission. Notably in such a large and complex case he did leave the door open for a further application following the permitted expert evidence as he could not be sure that the additional expert evidence should properly be excluded at this stage.

Further, that an effort to defer a trial date, an uphill struggle for any applicant, would require compelling evidence. RBS in seeking this blamed an overly extensive disclosure process and delays in proofing witnesses without sufficient evidence were nevertheless granted a very reluctant 3 month extension.

That reluctance reflected the significant nature of the case and in anything but an exceptional case the reasoning appears to have firmly come down on the side of refusing an extension.

The addendum to that permission was that Hildyard J is likely to start requiring that parties provide details of their witnesses and a brief summary of their proposed evidence (per CPR 32.2(3)) in order to more effectively manage cases. This appears an eminently sensible step especially if, like EDQs and Case Management Information Sheets etc, required to be exchanged prior to budgets will enable parties to budget more effectively.

Destroying evidence – fatal?

In Baxter v Barnes [2015] EWHC 54 (QB) Judge Collender QC helpfully summarises the position regarding destruction of evidence by a party. The leading authority on the point is that in Malhotra v Dhawan [1997] EWCA Civ 1096 which draws a distinction between deliberate destruction of evidence to hinder a claim which will carry a significant inferred impact on the destroyer’s credibility. Also suggesting that if there is doubt then it is legitimate to resolve this against the destroyer but the court is not bound to do so if the judge forms a clear view of the truth of the matter and cannot compel a judge to accept incredible evidence.

Malhotra was a case concerning innocent destruction, however, Baxter was argued by the claimant that as the defendant had been served with a letter before action that the defendant should have preserved the device at the heart of the dispute. This contention was not accepted as the court considered that it had enough evidence to decide the case properly; further that there was no requirement for a presumption or inference against the defendant or his credibility