Managing Litigation
Litigation post-Jackson
Mark Rhys-Jones, Partner,
Litigation and Dispute Management
Eversheds LLP
#thi...
Managing Litigation
Involving legal
Managing Litigation
• Key examples of where involving legal adds value:
– Privilege & without prejudice communications
– U...
Litigation post-Jackson
Background and Introduction
Litigation post-Jackson
• In 2008, Lord Justice Jackson was appointed to lead a
fundamental review of the rules and princi...
Litigation post-Jackson
• Broadly, the key areas of reform to civil litigation are:
– Costs management
– Case management
–...
Litigation post-Jackson
Costs Management
Litigation post-Jackson
• Changes aim to deal with cases justly and at
proportionate cost
• Applies to most multi-track ca...
Litigation post-Jackson
• Consider proportionality at all stages of a case
• Consider quantum carefully from the outset
• ...
Litigation post-Jackson
Case Management
Litigation post-Jackson
• Changes to the ‘overriding objective’
• Provisional allocation of cases
• Parties file direction...
Litigation post-Jackson
Disclosure
Litigation post-Jackson
• Applies to most multi-track claims
• Changes aim to ensure that costs of disclosure are
proporti...
Litigation post-Jackson
• The menu of options are:
1. No disclosure;
2. Each party discloses documents on which it relies ...
Litigation post-Jackson
• Parties must file and serve a disclosure report
• Parties must also discuss/try to agree a propo...
Litigation post-Jackson
• Early planning, budgeting and a firm handle on quantum of
claims really is essential
• Think ear...
Litigation post-Jackson
Part 36
Litigation post-Jackson
• Previously, a claimant received enhanced interest and
indemnity costs if it did as well as/beat ...
Litigation post-Jackson
• Defendants – think carefully about rejecting offers in the
‘right zone’
• Consider carefully whe...
Litigation post-Jackson
Funding
Litigation post-Jackson
• Goodbye CFAs?
– Still exist but success fee no longer recoverable from
opponent
– Same with ATE ...
Litigation post-Jackson
• Generally good news for defendants as no longer face
increased costs liability
• Reforms unlikel...
Litigation post-Jackson
Summing up
Litigation post-Jackson
• Wide-ranging implications for managing litigation going
forward
• Changes are still very much in...
Keep up to date
• Twitter: @EvershedsFAD
• Hub: foodanddrinkhub.eversheds.com
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Eversheds Food and Drink Seminar Litigation and Dispute Management Presentation 3rd October 2013

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Eversheds Food and Drink Seminar - Managing Litigation - Litigation post-Jackson Presentation 3rd October 2013

Mark Rhys-Jones, Partner, Eversheds LLP

Covering topics;

- Involving legal -why to involve legal
- Lord Justice Jackson’s mandate: costs
- What’s changed?
- Costs Management - The new costs management regime
- Case Management - The new case management regime
- Disclosure - The new disclosure regime
- Part 36 - The changes to the ‘Part 36’ regime
- Funding - The changes to funding
- How these changes affect your business

Published in: Business, Health & Medicine
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Eversheds Food and Drink Seminar Litigation and Dispute Management Presentation 3rd October 2013

  1. 1. Managing Litigation Litigation post-Jackson Mark Rhys-Jones, Partner, Litigation and Dispute Management Eversheds LLP #thinkfoodlaw
  2. 2. Managing Litigation Involving legal
  3. 3. Managing Litigation • Key examples of where involving legal adds value: – Privilege & without prejudice communications – Understanding tactics and process – Analysing legal issues & recognising claims, including value of disputes – Document/record retention – Learning & feeding back lessons to the business to reduce risk of repeat mistakes A refresher of why to involve legal
  4. 4. Litigation post-Jackson Background and Introduction
  5. 5. Litigation post-Jackson • In 2008, Lord Justice Jackson was appointed to lead a fundamental review of the rules and principles governing the costs of civil litigation and to make recommendations • In December 2009, Jackson LJ’s findings were set out in his final report • The purpose of Jackson LJ’s reforms is to ensure that the costs of litigation are proportionate Lord Justice Jackson’s mandate: costs
  6. 6. Litigation post-Jackson • Broadly, the key areas of reform to civil litigation are: – Costs management – Case management – Disclosure – Part 36 offers – Funding • Save for some transitional provisions, the changes went ‘live’ on 1 April 2013 What’s changed?
  7. 7. Litigation post-Jackson Costs Management
  8. 8. Litigation post-Jackson • Changes aim to deal with cases justly and at proportionate cost • Applies to most multi-track cases • Parties must file and exchange costs budgets • A new test of ‘proportionality’ in the CPR • Increased costs burdens for litigants? The new costs management regime
  9. 9. Litigation post-Jackson • Consider proportionality at all stages of a case • Consider quantum carefully from the outset • If the regime applies, each element of your costs budget must be proportionate • Even if the regime doesn’t apply, note the general push towards proportionality • Narrow the issues at an early stage • Behave reasonably! The new costs management regime: tips
  10. 10. Litigation post-Jackson Case Management
  11. 11. Litigation post-Jackson • Changes to the ‘overriding objective’ • Provisional allocation of cases • Parties file directions questionnaires • Online standard directions • Court’s express powers to monitor compliance with directions and sharper teeth in respect of applications for relief from sanctions • Docketing and ‘hot-tubbing’ to increase efficiency • Changes to track limits • Controls on witness evidence The new case management regime
  12. 12. Litigation post-Jackson Disclosure
  13. 13. Litigation post-Jackson • Applies to most multi-track claims • Changes aim to ensure that costs of disclosure are proportionate • Standard disclosure is no longer the default position – now ‘menu option’ for disclosure… The new disclosure regime
  14. 14. Litigation post-Jackson • The menu of options are: 1. No disclosure; 2. Each party discloses documents on which it relies and requests specific disclosure from other party(s); 3. Disclosure on issue-by-issue basis; 4. Standard disclosure; 5. Any other order which courts thinks appropriate – e.g. ‘keys to the warehouse’ The new disclosure regime
  15. 15. Litigation post-Jackson • Parties must file and serve a disclosure report • Parties must also discuss/try to agree a proposal for disclosure • Court can give directions on how disclosure is to be undertaken/given at any time • Do you think that costs will reduce as a result of the changes? The new disclosure regime
  16. 16. Litigation post-Jackson • Early planning, budgeting and a firm handle on quantum of claims really is essential • Think early about who you’ll need to involve in the disclosure process (IT, technical experts, lawyers, employees, the other side, the other side’s lawyers…anyone else?) • Link in with any e-disclosure requirements • Careful monitoring of costs is key The new disclosure regime: tips
  17. 17. Litigation post-Jackson Part 36
  18. 18. Litigation post-Jackson • Previously, a claimant received enhanced interest and indemnity costs if it did as well as/beat its own offer at trial • The changes to Part 36 mean that, in addition to the above, a claimant receives an extra payment (up to £75,000) • Changes only apply to claimants’ offers • Aim is to make claimants’ offers more effective in achieving settlement The changes to the ‘Part 36’regime
  19. 19. Litigation post-Jackson • Defendants – think carefully about rejecting offers in the ‘right zone’ • Consider carefully whether to re-make offers already on the table to capture the enhanced benefits • Impact of changes most significant for claims with value in £300,000 - £500,000 range The changes to the Part 36 regime: tips
  20. 20. Litigation post-Jackson Funding
  21. 21. Litigation post-Jackson • Goodbye CFAs? – Still exist but success fee no longer recoverable from opponent – Same with ATE insurance premiums • Hello DBAs? – Form of contingency fee (no win, no fee) – Solicitors’ fees = % of damages recovered – Caps apply depending on nature of claim The changes to funding
  22. 22. Litigation post-Jackson • Generally good news for defendants as no longer face increased costs liability • Reforms unlikely to have much effect on large commercial/complex/high risk claims The changes to funding: tips
  23. 23. Litigation post-Jackson Summing up
  24. 24. Litigation post-Jackson • Wide-ranging implications for managing litigation going forward • Changes are still very much in their infancy – expect satellite litigation • ‘Front loading’ will become the norm… • …so seek advice and plan early • Be vigilant in respect of court timetabling • Make reference to the tips included in this presentation • Keep proportionality in mind at all times! How these changes affect your business
  25. 25. Keep up to date • Twitter: @EvershedsFAD • Hub: foodanddrinkhub.eversheds.com

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