Stamping out meanness

Bench and bar combine to squelch Jackson civil litigation cost reforms ... Latest scheme of improvement to costly litigation quietly throttled … Dame Elizabeth Gloster says judges should not be mean about barristers' fees … Alix Piatek reports 

Commercial Courts exempt from Jackson costs reforms

ON April 1 Lord Justice Jackson's civil litigation reforms took effect across the green and pleasant land. 

Jackson's measures to control "the spiralling cost of civil litigation" have been hotly contested since his final report was published in 2010. 

There has been a concerted campaign from judges and lawyers to treat the litigation reforms as a huge April Fool's joke. 

A former High Court judge, Dame Elizabeth Gloster, who has just been appointed to the Court of Appeal, was outraged by the proposals and led the charge to get the commercial courts exempt from the costs budget scheme. 

Late last year she told a gathering at the bar that there was a tendency for judges who had made a good living as barristers to become, "kind of mean about what you guys are earning". 

Her drift was, we made a packet when we were at the bar, so why should we stand in the way of you doing the same? 

Indeed, Gloster was the first female barrister in Britain to earn over £1 million a year. 

She told the bar last November:  

"I think we have to take a realistic approach to what it costs to bring a case. I am very concerned that there will be ill-informed costs management. But I have only won this battle for the Commercial Court." 

Since then, the exemptions to the cost management rule have spread and in addition to the commercial and admiralty courts now apply to "multi-track" cases in the Chancery Division and "such cases in the Technology and Construction Court and the Mercantile Courts" as the heads of those jurisdictions "may direct". 

In fact, all cases where over £2 million is in dispute shall not be subject to the reforms. 

With these exemptions and judicial discretions now built into the new rules there will be little chance of "meanness" undermining the litigation fee fest. 

The Jackson rules have been piloted in the Technology and Construction and Mercantile Courts for some time and ruthless costs penalties have put the fear of god into lawyers dragging the chain. 

In 2007 Gloster was on the commercial court long-trials working party, which said that costs capping was not very useful in large scale litigation, where both parties usually have equal spending power.  

The bottom line: if they have the money, let them keep spending. 

Lord Neuberger, now President of the Supreme Court, in a speech to the Association of Costs Lawyers, attempted to quell fears of deflated incomes, assuring lawyers it will be better to work more and for less money.  

"Lawyers should be able to charge realistic fees and encourage many more clients to instruct them to fight their case." 

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Berezovsky: Gloster's judgment could have been written by Putin

Last year, Gloster presided over England's biggest civil litigation lawsuit between two Russian oligarchs - Boris Berezovsky v Roman Abramovich.  

Berezovsky had been a business partner of Abramovich and accused him of a breach of trust and breach of contract. 

He sought $6.5 billion in damages. 

Gloster found for Abramovich, describing Berezovsky as an "inherently unreliable witness, who regarded truth as a transitory, flexible concept".

She went on: 

"I gained the impression that he was not necessarily being deliberately dishonest, but had deluded himself into believing his own version of events."

Abramovich was considered a "truthful, and on the whole reliable, witness". 

The case cost Berezovsky around £100 million. He said afterwards that he was under the impression that "Putin himself wrote the judgment". 

Gloster praised the way the case was conducted: 

"Whatever tensions or undercurrents there may have been between the parties, or indeed the lawyers, in what were, heavily fought, acrimonious disputes involving serious allegations of dishonesty and blackmail, the case was battled out in a courteous, disciplined and restrained manner."

On March 19 Berezovsky sold a Warhol at Christies for £200,000. Three days dater he was dead - apparently by suicide. He was broke, the case having wiped him out. 

See: London Review of Books

See: The bear and the bar  

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Popplewell: down the aisle with Gloster

In 2008 Gloster married Sir Oliver Popplewell, 80, a retired High Court judge. He is 22-years older than his bride. 

The Daily Mail reported that more than 200 guests were invited to the "grand wedding" at the Temple Church in the heart of the Inns of Court, including her former personal chef. 

The ceremony was followed by "a lavish reception" at the Great Hall of Lincoln's Inn, a short walk away on the other side of the Royal Courts of Justice.  

Alix Piatek reporting 

Comments

[Cliff Baker]

I am sure Dame Elizabeth's motto is "Nothing exceeds like excess."