Reading the one-year-on evaluations of the Jackson reforms, the overwhelming majority have focused on Mitchell and the harshness of the penalty. The decision had a ‘this time it’s real’ quality that was lacking during the Woolf reforms a decade ago. It has engendered a collective fear of banana skins around every corner, even within the best-run law firms.
But, despite this initial flurry of concern, I expect things will gradually calm down on compliance, while the development of costs budgeting will prove to be a positive game-changer – it is rightly the least controversial of the initiatives.
Rather than Mitchell, I expect the most insidious Jackson reform will turn out to be the application of the new proportionality test. This invites far too much broad-brush discretion, detracts from predictability, and will encourage and prolong disputes over costs.
Andy Ellis, Costs lawyer and managing director, Practico, London EC3
- Ellis is advising NGN’s lawyers, Simons Muirhead & Burton, on costs in Mitchell v NGN
