Friday, 15 January 2010

The Jackson Review: some responses

PatLit has spotted quite a few early comments and responses to the Jackson Review, which was published in all its glory yesterday (see earlier post here). A selection of them are featured here.

Most of the Jackson Review is non-IP-specific [which is why, for example, Legal Week's and The Lawyer's early responses don't mention IP at all]. Thus Alasdair Poore (Mills & Reeve LLP) observes:
"Lord Justice Jackson makes a number of more general proposals which may impact on IP litigation. Some of these such as the abolition of recovery of the uplift on fees in conditional fee litigation and the "after the event" insurance premiums from the defendant will undoubtedly require further consultation. Others such as streamlining disclosure and expert witness evidence in high value disputes, and costs management and whether Counsel's fees which are very high should be fully recoverable, can probably be addressed by the Court Users Committee and guidance from the Courts".
He also notes that sheer bulk of the Review and the fact that IP forms only a very small part of the whole may act so as to slow down the IP reforms:
"A key issue is whether these proposals will be swamped by the other 450 pages of comments and proposals. Innovation is vital to the UK economy, there is almost complete consensus on introducing them. It will be appalling if implementation is delayed pending a debate over the very major issues on other areas of litigation, particularly personal injuries. Pressure needs to be brought to bear to push for these reforms as soon as possible".
Andy Millmore (Harbottle & Lewis) reminds readers that most of the Review's aims and proposals are not new, but concedes that their implementation can lead to radical changes. He adds:
"Overall, the initial reaction suggests that defendants are generally the winners, as the amount of costs recoverable by claimants can be restricted in some cases and in certain ways. On the other hand, there are changes proposed which may increase the likelihood of litigation, in particular the suggestion that lawyers should be able to undertake work on a true “contingency” basis, with their recovery directly linked to the recovery made by the claimant".
But if there are more cases and things look brighter for defendants, what will happen to costs overall? He predicts as follows:
"For smaller disputes, the costs should come down. For larger disputes, this will not necessarily be the case, but hopefully it will be the merits of the case which determine how it is resolved, rather than being driven by the level of legal fees which have been run up by the time that settlement is discussed".
From the Bar, Tom Mitcheson (3 New Square) focuses on what goes on before the trial gets into the courtroom. He says:
"The review refers to an IP Pre-Action protocol, and states that an earlier attempt to create one "ended in failure". That is not really fair -- considerable work was put into creating one, which can be found here. The "failure", if there was one, was on the part of the CPR Rules Committee to agree to adopt it as a formal protocol, because at that time it was thought that a proliferation of protocols was not desirable.

Even if the old protocol is not perfect, those considering the issue should find it a useful starting point if one is to be adopted following the Jackson review".
So far, there's no response on the websites of the Intellectual Property Lawyers' Association (IPLA), The Intellectual Property Lawyers' Organisation (TIPLO), the Chartered Institute of Patent Attorneys (CIPA), the IP Bar Association (IPBA) or the Institute of Trade Mark Attorneys (ITMA) -- but some careful analysis and constructive comment can be expected from those bodies in due course.

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