There are, as ever, a number of developments expected in 2018 affecting those who are involved or who become involved in civil litigation over the course of the next year and beyond.  Set out below is an overview of some of the developments which we expect may be most relevant to you. 

Costs

The format by which costs are provided to and assessed by the court is undergoing an overhaul.  With some limited exceptions, a new electronic bill of costs will be mandatory for costs recoverable between parties for work undertaken from 6 April 2018 in all Part 7 multi-track claims.  The new form will mark a change not only in how fees are recovered but also how they are charged and how time is recorded by law firms in England and Wales.   

Damages-based agreements

A DBA is an option for funding litigation.  If the case is successful the lawyer’s fee is calculated as a percentage of the financial benefit obtained but if the case is lost, no fee is payable to the lawyer.  However, the statutory regime relating to DBAs has been so complex and unclear since their introduction that many lawyers and clients do not consider their use as a realistic method of funding litigation.  In September 2015 the Civil Justice Council made 45 recommendations to government on a revised statute but to date no amendment has been made.  In June 2017, Master Clark concluded that there should be a trial of a preliminary issue on whether a DBA is unenforceable.  The trial of this matter will be the first time a court has considered the validity of a DBA and could mark a significant change in the way DBAs are viewed and used by clients and lawyers alike into 2018. 

Disclosure

As we reported on previously, a working group has been considering possible changes to the disclosure process in civil litigation aimed at reducing the time and costs spent on disclosure under the current regime.  It was proposed that a pilot scheme would run for two years in the new Business and Property Courts and views are currently being sought on the new proposals by 28 February 2018.  The proposed pilot is expected to be submitted to the Civil Procedure Rule Committee (“CPRC”) for review and approval in March or April 2018 and could herald the start of a disclosure process that is far more streamlined to the issues in a case than is currently the position, thereby saving parties involved in litigation significant time and costs.   

Changes to Procedure

The CPRC has been working towards reform of the Civil Procedure Rules 1998, the rules by which all litigation in England and Wales is governed.   A sub-committee has been working on amendments to the rules relating to Default Judgment, Setting aside or varying default judgment and Admissions and we await confirmation of a date as to when the revised rules will come into effect.   Other parts of the rules are also being revised and the forthcoming plan of works indicates the CPRC’s plan to review rules relating to starting a claim and the Claim Form.

Electronic Working

Under the Electronic Working Pilot Scheme, the use of electronic working has been compulsory in the Rolls Building courts since April 2017.  The pilot has been extended to 6 April 2018 when it is expected that electronic working will be extended to the district registries.  This means that most, if not all, dealings with the court need to be made electronically and parties need to ensure that the vagaries of their internet support does not adversely impact upon the merits of their case.

Conclusion

For more information on any of the above areas or future developments as they unwind please feel free to contact us to discuss how these may affect your business.