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Chief Whip Whipped By Judge

And so we return to our old friend, Rupert Jackson, and his reforms to the civil justice system. These reforms included costs control designed to improve access to justice.  A recent court decision demonstrates that the former doesn't always lead to the latter.

One of the big sticks introduced by the reforms was a provision that costs that would otherwise be recoverable from the losing party in the course of litigation will be restricted to the applicable court fees if a party fails to file a costs budget.  This, coupled with his Lordship's promise that errant parties could expect "less indulgence" from judges, should have put all court users on their guard. It seems, however, that the message didn't get through to everyone.

Andrew Mitchell, the “Plebgate” MP, issued proceedings for defamation against News Group Newspapers in March in relation to their reports on the scandal.   Mr Mitchell’s solicitors failed to file their costs budget on time and the Court – in line with the new provisions - ordered that the Claimant’s costs recovery in the proceedings would be limited to the Court fees, and no other costs would be recoverable in the case.  Mr Mitchell made an application essentially asking the Court for leniency, but last week the court refused.

Mr Mitchell's lawyers came up with various excuses: they said they were a small firm; had  resourcing issues; and only had a few days to prepare the budget. All of this fell on deaf ears.  The Court didn't think Mr Mitchell's access to justice would be limited by its decision, and it might well not be – there's no suggestion that he was in any way responsible for the failure to file the costs budget, so it's quite possible that, one way or the other, his solicitors will end up picking up the costs.

This decision will extend beyond defamation claims and is likely to have implications for other cases subject to costs budgeting (which, as we've highlighted before, isn't all cases currently going through the courts, but will be many of them).  Whilst the message is clear that we have entered a new, largely zero tolerance, regime, we can't help thinking that these reforms aren't all good news. We can see: increased applications appealing for relief from sanctions and costs decisions; parties having to represent themselves or abandoning meritorious claims due to the irrecoverability of costs thereby in reality denying them access to justice; increased burdens on opposing firms dealing with significant numbers of litigants in person thereby increasing the costs to their own clients; increased appeals of interim decisions in such cases; negligence claims against legal representatives leading to increased (and in some cases unaffordable) premiums.  Perhaps we’re being unduly gloomy, but as we've said previously, these sorts of reforms do lead to lots of satellite litigation, which isn't good news for clients.

Mr Mitchell has been given permission to appeal and it would come as no surprise for the decision to be overturned.  If it isn’t, it’s not all bad as there is always a new stream of work at the end of the trials in these cases for those of us who make a living suing other professionals…


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