Andrew Mitchell found himself falling foul of the new Jackson Reforms when it came to costs in the ‘Plebgate’ case. But what will the changes mean for construction disputes?

Tony Bingham

Heaven forfend that you (or I, for that matter) should have the word “pleb” hurled at us, especially within the quiet and polite environs of a building site. “Pleb” - a pejorative word signifying someone of low social class. Worse to hear it said to the pleb: “Best you learn of your f***ing place”; “you don’t run this f….ing site”; “You haven’t heard the f***ing last of this”. 

Well now there is one hell of a row going on about all this “pleb” stuff between the MP Andrew Mitchell and the Sun newspaper. Mr Mitchell is suing the Sun for libel. There is a snag. The litigation has stumbled into new rules called “The Jackson Reforms”.  It appears that the litigators had to tell each other by a set date how much they would spend on the libel action. The Sun said it was a mere £590k on their side. Mr Mitchell said £506k, would be spent by his side. The snag?  Ah well, his lawyers missed the deadline for piping -up … Only by a few days … And who cares? 

The new Jackson rules care. 

The upshot is that if the Sun wins the libel action they will be entitled to hold their hand out for those legal costs from Mr Mitchell, but if he wins the action he will only recover £2,000 court costs. 

There is a real prospect that bringing new stuff to the party when it could have come earlier is not on. Cases now will be decided on less evidence than in the previously limp and forgiving regime

I reckon these Jackson Reforms (for making things cheaper) are ready to pounce on our construction contract territory, including adjudication. As to what these reforms are concerned with, it is that “the relationship between justice and procedure” has changed.  “The achievement of justice means something different now”, said the Master of the Rolls.  “Justice goes beyond simply looking at the immediate parties to the proceedings.”  It is not enough to consider the need to secure justice between the parties. 

The example of missing a timetable deadline will come down on you like a ton of bricks. Merely overlooking the deadline is not a good reason - “well intentioned incompetence for which there is no good reason will not attract relief of sanctions”. Another very recent case decided that it would not allow a party to change its case.  Seemingly newly instructed counsel re-appraised the merits of his client’s case and applied to amend during the trial. In previous times the culture was to allow that “in the interests of justice”, and on payment of costs. Not anymore, said the court. There was no better way of describing those circumstances as “being mucked -about” at the last moment. There is a real prospect that bringing new stuff to the party when it could have come earlier is not on. Cases now will be decided on less evidence than would have applied in the previously limp and forgiving regime.

Which brings me to adjudication. So, let’s have a look to oust what now makes the costs in adjudication disproportionate. Do this:

  • you can’t bring into the adjudication anything, which you could have argued before it began;
  • you will be taken to have seen the dispute coming and likely adjudication, and do everything to put your case to the other party;
  • the referral will include all the arguments put by both sides pre-adjudication and if one party said now’t, that’s that;
  • the respondent can only reply to complain that the referral has missed an earlier argument
  • there will be no reply to response, no rejoinder, no surrejoinder, no new evidence, no new experts’ reports, and no new submissions on law. In short, no new anything. 

Adjudication has lost sight of all being done in 28 days, lost sight of the mere 14-day extension of time. It’s gone bonkers. Why? Because the parties are full of bright new arguments once the game gets going. It’s a bad, expensive habit.  Often it explodes into an unrecognisable new dispute once the lawyers and consultants join the party. 

In truth, the idea was and always has been to decide the dispute as had crystallised at the date of adjudication. In other words it’s too late to bring into the referral or the response a “kit-bag” full of new evidence and argument. 
Go further. All these (expensive) jurisdiction arguments only need to be dealt with simply. If you really believe your own story just don’t take part. record your position. Put your courage where the keyboard gladiator is. In any event, your role as respondent is minimal because the whole of the existing dispute is in the referral. 

The Jackson Reforms are ever so big. The controversy is on the intellectual hang-up that “doing justice between the parties” is to pander and forgive the delays and mess-ups. All we have done is transform rules into tripwires for the unwary, when in truth commerce just wants a referee to decide the existing quarrel, do it now and do it cheaply. Which is the opposite of Mr Mitchell and the Sun spending £500k each on litigating alleged mutterings, which are heard on building sites everyday, without the slightest attention being paid.

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple

For Simon Tolson’s take on the Jackson reforms, click here