They say litigation is uncertain and Detailed Assessments are certainly no exception to that rule. Unfortunately no two cases are the same which makes case law difficult to bind; inevitably no two Courts are the same which makes consistency challenging and finally no two Judges are the same which makes justice seem like a game of roulette.
For post 1 April cases the goal posts shift and uncertainty strikes fear in even the most tenacious litigants. Perhaps it is the issue of costs which now claims a more prominent role in the course of litigation or the allegedly tougher approach being encouraged for non-compliance with rules. The new rule on proportionality also creates concern and doubt as to how the courts can interpret the rule and lets not forget the uncertainty over exactly who has to get in the hot tub and with whom.
But is it new rules same ways or new rules for a new era? I recently had an application before a Master in the High Court where the other side (litigant in person) had failed to comply with an Order for disclosure. They were due to serve witness evidence in April 2013 and instead filed it 1 day before the hearing in July 2013 along with a skeleton argument. Surely the witness evidence was not allowed and we got our costs in full? Absolutely not, not even a hint of criticism for the litigant in person’s conduct and the late evidence which was permitted. Lord Justice Dyson said “the tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases…This requires an acknowledgement that the achievement of justice means something different now". Tough times if you are in the minority where justice is not intended for you or your case.
This begs the question of who would be an advocate? Well having earned our rights of audience, our Costs Lawyers are not shying away from these new challenges. Rather than pretend it is not happening or waiting for someone else to set the precedent, we are facing these new times head on and are guiding our clients through these uncertain times.
“Do not follow where the path may lead, go instead where there is no path and leave a trail” – Ralph Waldo Emerson
For advice or more information on advocacy in the new Jackson era, contact Nick Lee.