My first Law Society Civil Litigation Section Conference as chair took place on 21 April 2016. As soon as Lord Justice Jackson accepted the invitation to address us as the keynote speaker, I knew that the conference would be high profile. I was right.
New bill of costs
When it became known that the subject of Lord Justice Jackson’s speech would be the new electronic bill format, some practitioners were, understandably, disappointed. With so much currently under challenge in the civil litigation world, many other subjects could have been chosen as the subject of his address.
I, though, was delighted because the innovative work of the Hutton Committee in designing an electronic bill of costs and the investment already made by firms who have adopted phase/task/activity time recording were in danger of being last, following the decision of the Civil Procedure Rules Committee last December to extend the lifespan of the voluntary pilot of the new format.
Lord Justice Jackson did not disappoint as he delivered his keynote speech in the form of a skeleton argument advocating the adoption of the new electronic bill format.
At paragraph 5.12, he made his thoughts quite clear:
“…the status quo is of no benefit to anyone. Investment decisions on time-recording software are being deferred. The work of the Hutton Committee has been left to lie fallow. Most egregiously, we still have a bill of costs that was identified as being seriously deficient many years ago.”
Lord Justice Jackson suggested a practical way forward. He recommended that the Hutton Committee’s proposed bill format should be adopted with the references to J-codes removed. In essence, data can be recorded and collated in any way desired, but with the proviso that the resulting bill of costs must group data by reference to Precedent H phases and within each Precedent H phase, and also by task and activity.
Lord Justice Jackson was clear that the new format should not apply retrospectively and that the format should be compulsory for all work done after first of October 2017. This means that firms are free to develop alternative time recording standards, but at paragraph 4.17 Lord Justice Jackson made it clear that “J-codes represent the standard which [any alternative time recording] will have to equal or exceed.”
My preliminary thoughts are these:
- I have always been very clear that using J-codes to time record could never be a mandatory requirement.
- From speaking to practitioners, my feeling is that uncertainty over the introduction of a new bill format and any requirement to apply a new way of working retrospectively were legitimate reasons for concern, which have now been removed.
- Everything said at the conference is no more than a set of recommendations to the CPRC, which is not bound to take them forward, but there is much to commend them.
I should just mention that hidden within the speech are two more interesting points which are going to be given more attention over time, I am sure:
- At paragraph 5.8, Lord Justice Jackson proposed fixing costs for bill preparation. That is a logical next step if the introduction of a new bill format has the intended effect of significantly reducing the cost of preparing bills of costs.
- At paragraph 5.9 (ii), there is reference to “vociferous opposition” to fixed costs meaning that it is “uncertain when and up to what level fixed costs will be introduced.” I am still wondering what that means in practice, but I am convinced that those firms which are already able to analyse their historical time recording data will be in a much better position than the rest of the profession to understand the implications of fixed costs being introduced.
Tony Guise also touched on the new electronic bill format in his talk entitled “The future of the civil courts”. Tony represented the Law Society on the Hutton Committee and his view is that, where the new bill format is concerned, “Pragmatism will overcome the disconnect between practice and proposal.”
The Law Society has recently launched a survey to gauge awareness of J-codes and the new bill format, which closes on 25 May 2016.
Data protection
Richard Syers, the Lead Policy Officer at the Information Commissioner’s Office, spoke on the subject of “Data protection and cyber security for legal professionals”. Richard highlighted that the two main data protection issues for legal professionals are the loss and theft of paperwork and data being posted or faxed to the incorrect recipient. New data protection regulations are being introduced in 2018 and Richard reminded the legal profession to take early steps to plan for their introduction.
European Small Claims Procedure
Rita Giannini, EU Justice Policy Advisor from the Law Society’s Brussels office took us on a whirlwind tour of the European Rules of Civil Procedure. Rita focused particularly on the newly introduced European Small Claims Procedure, which aims to simplify and speed up cross-border cases, as well as making it easier to enforce a claim against a defendant in another EU country.
Inspiration
Finally, we also heard from Mark Parnall of Parnalls Solicitors in Cornwall. Mark is a co-founder of Folk2Folk, a P2P business founded in 2013.
It was inspiring to hear from Mark that he and his colleagues responded to the financial crash by identifying a local need and a gap in the market and went back to the basics of honesty and simplicity in setting up Folk2Folk, which is already one of the largest P2P lenders to business, with £90M of cumulative lending and no defaults to date.
Feedback about the conference (my first as chair) has so far has been positive and I am already full of ideas for making our autumn conference (which will be on 29 September 2016) even better.
