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Feedback from TeCSA members on the use of the eDisclosure Protocol

Dear All

On 1 November 2013, TeCSA, TECBAR and the SCL launched its eDisclosure Protocol and Guidelines with the aim of assisting their members with the increasingly problematic issue of handling eDisclosure.

Mr Justice Edwards-Stuart has set up a Working Group comprising those who drafted the Protocol to monitor its progress and recommend whether any amendments are necessary based on user's feedback.

Anecdotal evidence is that the Protocol is proving very useful both to the legal community and to eDisclosure providers.  This said, we would greatly appreciate any feedback from TeCSA members on the use of the Protocol (good or bad) so that this can be considered by the Working Group at its first meeting on 22 May 2014.

A bottle of Taittinger Vintage Champagne awaite the best feedback submission!

All feedback should be sent to Steven Williams, Partner at Nabarro LLP (s.williams@nabarro.com).

Kind regards

Simon

Chairman of TeCSA

 

Chairman's Report 2013

Please see Chairman's Report here

E-disclosure

TeCSA, TECBAR and Society of Computers and the Law have worked over the past 9 months to formulate and agree upon the attached near final draft of the E-Disclosure Protocol, Guidelines and Timeline. It is now before the TCC Judges for comment. 

 

The draft TeCSA E-Disclosure Protocol, TeCSA  E-Disclosure Guidelines and TeCSA E-Disclosure Timeline (more for Court matters but a good aide memoire all the same even in arbitration) together with a full guide to E-Disclosure prepared for TeCSA by Andrew Haslam are on this link. These first three documents incorporate the consolidated current views of all three organisations on best practice with dealing with larger document cases. The Protocolincludes a valuable claw back provision for inadvertent disclosure within clause 7.2.  The E-Disclosure Guidelines includes an “introduction/commentary” that covers the practical points about how to use the Protocol on a paragraph-by-paragraph basis.

 

TeCSA is hoping to finalise its E-Disclosure Protocol material before November 2013, this link takes you to the latest draft materials for your information and use in the meantime.

Please click link http://www.tecsa.org.uk/e-disclosure

More on Costs Budgeting ....

More on costs budgeting…

On 19 September last year, Andrew Mitchell MP probably anticipated a pleasant end to a challenging day as Chief Whip: leaving his office in Downing Street and attending a dinner at a private members' club.  What happened on leaving Downing Street has however provided many inches of newspaper column, has involved the arrest of a police officer and is now the subject of a defamation claim by Mitchell against The Sun.  And "Plebgate", as it has become known, continues to provide column inches, but this time in respect of the – perhaps unexpected – arena of costs budgeting.

Readers of this blog will no doubt be familiar with Precedent H and the new costs management regime and our last blog entry examined the wisdom of the £2m exemption for the TCC and mandatory costs budgeting in general. The Mitchell defamation claim has now provided a salutary warning to solicitors of the perils of not filing a compliant Precedent H and looks set to go to the Court of Appeal.

Mr Mitchell’s solicitor failed to file a cost budget 7 days before the CMC, although one was filed the day before the CMC.  At the CMC their costs for the whole action were limited to court fees only.

 

Needless to say, Mr Mitchell (and no doubt his solicitors) were not happy with this and promptly applied for relief from sanctions which, after a fully argued and evidenced hearing, was denied on 1 August 2013.

 

The Master was pretty clear in her decision.  Primarily she decided that she was not able to overturn her own original decision by way of an application for relief from sanctions.  That was an appellate matter and should be referred to the appeal court.  However, if she had been able to reconsider she would still have imposed the same order (no costs):

 

-       Rule 3.14 applies to failure to file a budget on time.  Not simply failure to file a budget at all.  “I read rule 3.14 as meaning that the automatic sanction set out there is triggered if a party fails to comply with rule 3.13, in other words is in breach of the 7 day time limit.”

-       Relief from sanctions “engages ‘old fashioned’ concepts of fairness, access to justice including Art. 6, and requirements for proportionality of response, in addition to adherence to the new overriding objective.”

-       Fairness and Justice has changed.  what we now mean by ‘dealing with cases justly’ has changed, or if it has not changed then at the very least there is a significant shift of emphasis towards treating the wider effectiveness of court management and resources as a part of justice itself.”

 

Mr Mitchell’s solicitors argued that they were short staffed and engaged on other matters – there were two partners, one assistant engaged on preparing for two other hearings within days and three trainees of whom two were on leave.  One senior associate had just left – we can perhaps guess why.  Because of the alleged urgency of the case, the court gave the parties 11 days' notice of the CMC so only 4 days to file a cost budget, two of which were over the weekend.  The claimant’s solicitors also claimed not to realise that the cost-budgeting regime had not lapsed in respect of defamation cases.  The Master’s view on all of this was that:

“even before the advent of the new rules the failure of solicitors was generally not treated as in itself a good excuse and I am afraid that however much I sympathise with the Claimant’s solicitors, such explanations carry even less weight in the post Jackson environment.” and

“The excuses set out in the evidence did not justify relief.”

Her general comments should serve as a reminder to us all:

Budgeting is something which all solicitors by now ought to know is intended to be integral to the process from the start, and it ought not to be especially onerous to prepare a final budget for a CMC even at relatively short notice if proper planning has been done.”

 

The stricter approach under the Jackson reforms has been central to this judgment. It would have been far more likely that prior to 1/4/13 I would have granted relief on terms,”

 

Permission has been granted for an appeal and it will be interesting to see whether the Court of Appeal is willing to take a hard line on cost budgets or whether the "good reasons" for departing from a costs budget as set out in the Henry case (another defamation case against The Sun) might kick in.

 

Unfortunately perhaps for Mr Mitchell (or, rather his solicitors who are acting on a CFA), the Plebgate defamation case is another example of the courts taking a pretty strict approach to mandatory costs budgeting.  The Elvanite case in the TCC is another where a (successful) defendant's costs are to be assessed using the approved budget as the starting point, notwithstanding the fact that its actual costs have come in at practically double the budget.

TeCSA's response to the recent consultation on mandatory costs budgeting (which can be found here) [link] is frank in its views.  The real concern is that the crucial cost-benefit case for mandatory costs budgeting has not yet been made out.  In fact, its introduction might simply bump up the cost of litigation which will reduce the attractiveness of the TCC.  Given how well the TCC is currently viewed by its users (including international users) it would be unfortunate to say the least to have mandatory costs budgeting undermining that reputation.

 

Please click here for TecSA's response to the CPRC Consultation Paper as at 19 July 2013

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