The world of litigation – now more deftly called dispute resolution (DR) – is now more than just a moving feast… Some may say that it’s for the better. Indeed, I have no doubt that if I undertook a straw poll of business owners they would universally agree that they would like to see disputes settled faster, more cheaply and a with a greater degree of costs certainty. Those objectives are much the same as Lord Jackson introduced with his reforms in 2013. (His key message was to see litigation conducted in a proportionate manner.)
Recent decisions of the high court have reinforced the desire of judges to make sure the aforementioned shopping list is achieved. In particular:
- Do not ignore or, without good reason, refuse invitations to mediate a dispute in which you’re involved. The court will take a dim view if you do so, and can impose costs penalties against a party which does so, even if that party wins the case
- There are themes and trends arising from the interpretation of the court rules by judges in judgments which have been and will continue to be delivered. One such theme is the expectation by the courts for parties to comply with time limits for taking steps in the litigation and the consequences of not doing so. They will be quite draconian!
- Arguably, now more than ever before, lawyers specialising in litigation need to see themselves as ‘project managers’. The goal is to achieve the desired outcome at minimal cost to the client. They need to be more than technically competent i.e. knowing the law is one thing but making sure they act with an eye on the Jackson reforms will be an essential component of their role. The project team will be the client, the lawyers, possibly experts and of course witnesses. The best project managers will keep the lines of communication flowing within the team to ensure, among other things, adherence to the court deadlines.
This is by no means a full and comprehensive list, and, over the coming weeks, I shall share my further thoughts on the whole DR process, culminating in a breakfast seminar when we shall share our experience on topical issues in resolving commercial disputes.