Jackson or Mitchell? Either way it’s a mess

It must be very strange to be Andrew Mitchell.

Not only will you forever be remembered for a 45-second exchange that didn’t happen, but you’ve also unwittingly secured a place in English legal history.

It was the Tory MP’s libel case, of course, that was the subject of the landmark Court of Appeal judgment on how the judiciary would deal with the Jackson reforms. Harshly, as it turned out.

If Mitchell ever happens to stumble upon the Gazette website, he’ll find he’s been ridiculed, blasted and any number of other verbs. His name invokes fury and anger in law firms across the country and its very mention sends costs lawyers into a sweat.

As for social media? I just hope for his sanity he’s never tempted to search for his name on Twitter.

Mitchell has become so commonplace that he’s replaced Jackson as the umbrella term for costs management reforms dreamed up by Sir Rupert.

The Civil Justice Council’s consultation on the first year of Jackson/Mitchell has stirred such a hornet’s nest that it’s difficult to see how the government and judiciary can ignore it.

Representative bodies and the firms they stand for have taken it in turns to respond with a catalogue of failings in the new system.

They say the judiciary is under-prepared, apathetic and inconsistent, the courts are choked with administrative tasks and lawyers are spending more time on ticking boxes than on the litigation itself – all the while looking across at the other side with suspicion and wondering how they can catch them out for non-compliance.

This will hardly come as news to Jackson. In his original report he said ‘it must be accepted’ that costs management will generate additional costs and place extra demands on the court.

In other words, it’s a mess – but it’s a mess that Jackson saw coming.

The payoff, as Jackson saw it, was that clients would benefit from certainty around their case, and, with time, the flaws would be ironed out.

‘Costs budgeting is a skill which all lawyers could acquire,’ he concluded, ‘if they are prepared to give up time to being trained; effective costs management is well within the abilities of all judges, if properly trained; effective costs management has the potential to control the recoverable costs, and sometimes the actual costs, of litigation to more acceptable levels.’

With a year’s hindsight, we can generously see this was laudable but naïve.

Simply relying on all the problems to disappear once lawyers and judges got some extra CPD points was wishful thinking. If we have learnt anything from the consultation responses so far, it’s that the system needs fundamental change if we’re ever to see the benefits of costs budgeting.

Until then, if I were Jackson, I’d be more than happy for Mitchell to take the blame for it.

John Hyde is a Gazette reporter