August 11, 2014

The Jackson rules and the Mitchell breach: the pitfalls in civil litigation

Who’s Jackson?

In the last 18 months, ‘Jackson’, has been the buzzword in the legal profession. What is this all about? Without getting too technical, ‘Jackson’ refers to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which came into force on 1 April 2013 and introduced significant changes to civil litigation. The Jackson for whom the Act is nicknamed is Lord Justice Jackson who made recommendations in order to “control costs and promote access to justice.”

What does ‘Jackson’ mean in practice?

The Act made significant changes to costs in civil litigation affecting a broad range of cases such as professional negligence or personal injury claims. For example solicitors must now submit costs budgets in cases with a value in excess of £25,000.

Jackson in action

In the famous ‘pleb-gate’ case of Andrew Mitchell who was reported by The Sun newspaper to have called police officers “plebs”, Mr Mitchell brought a claim against the newspaper for defamation.

The solicitors representing Mr Mitchell were in breach of the LASPO rules and failed to serve a costs budget at the appropriate time. They did eventually file a budget of over £500,000, but the Court only let them recover Court fees which made up a very small portion of that £500,000 budget.

What was the solicitors’ mistake here? The court applied a strict interpretation as recommended by LJ Jackson, punishing the solicitors for filing a cost budget too late. The Court of Appeal held that the solicitors had failed in their duty to conduct litigation efficiently and at proportionate cost.

This case had the effect of making solicitors extremely nervous about breaching a Court Order or failing to comply with the Civil Procedure Rules. So much so that the term ‘‘Mitchell-proofing’ appeared and conscientious firms have started updating their internal procedures to make sure they do not miss deadlines.

A risk to clients

However, it has been reported in the Law Society Gazette (by John Hyde, 28 July 2014) that as many as one third of practising civil litigators in England and Wales are not “Mitchell-proof”, meaning they still have not updated their internal systems to take extra steps to prevent such a breach. When this happens, firms leave themselves open to professional negligence claims as they may commit breaches which are fatal to otherwise good claims. This sits alongside the risk that work which would have previously been conducted by an experienced solicitor is now being handled by an unqualified or junior member of staff given the reduced costs that are available for solicitors in cases worth less than £25,000.

We regularly receive enquiries from people dissatisfied with the handling of their matter by their previous solicitor and often take over the conduct of the litigation from other firms. We are keeping an eye on enquiries where previous solicitors have committed a Mitchell breach, and have the knowledge and experience to pursue a claim against them.

If you think you may have a claim against your solicitors in a civil case then contact us today for free impartial advice.

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