Litigation And ADR Procedure News For In-House Lawyers: UK Construction Focus

Round-up of Technology and Construction Court (TCC) practice and procedure news

Pilot of the new disclosure regime - update

Work on the proposed new disclosure regime continues. As mentioned in our Autumn 2017 briefing, ( Proposals for new disclosure rules in the offing), proposals have been made to introduce a new disclosure pilot scheme, which will run in the Business and Property Courts. A new Practice Direction, a new Disclosure Review Document and related guidance were published in early November 2017. Since then, informal consultations have taken place and the pilot is expected to be approved in the next month.

New electronic bill of costs now mandatory (J Codes are in!)

It is now compulsory for parties to use the new electronic bill of costs in detailed costs assessments in the English and Welsh courts instead of the traditional paper bill. The changes, which came into force on 6 April 2018, are intended to make it easier to produce bills of costs and costs budgets and to improve the robustness of challenges to costs.

Litigators must now record their time using the new time recording codes known as "J Codes". The Steering Committee behind the changes believes that J Codes will "provide the foundation for a system allowing contentious [legal] work to be recorded electronically and reports to be produced automatically and at minimal cost for budgeting, summary assessment, detailed assessment and client billing".

J Codes are a list of very specific tasks and activities which litigators will use to categorise every period of time recorded electronically when working on the various different phases of a court case:

There are 15 Phases in total from "Initial/pre-action protocol [(PAP)] work" to "Costs management conference" and "Costs assessment". Each Task then has its own allocated tasks. So, for example, for "Initial/pre-action protocol work", the choice of tasks is: "1. Factual investigation; 2. Legal investigation; and 3. PAP or similar work. There are then 10 Activities, which cover all that a legal representative might undertake in relation to a particular task (for example, "Appear for/attend", "communicate" (with counsel) and so on). There is also a list of expenses. In total, there are 39 categories under which time can be recorded. So, for example, if a solicitor spends time drafting a witness statement, his/her time will be recorded as follows:

Phase: Witness statements Task: Preparing own side's statements Activity: Meeting witness

Why was this change needed?

Drawing up the traditional bill of costs is a time-consuming and often trying process. In 2010, Lord Justice Jackson recommended a new, more transparent, system that would make it clear who had done what, when and why and also make it easier to take an overview of the costs position.

Technology was proposed as the solution and in particular the use of J Codes. A two-year, voluntary, pilot followed to test the use of J Codes but there was little take-up of the new approach. A new Practice Direction (PD47) was issued in November 2017 with an optional new format electronic bill and slimmed down J Codes.

PD47 sets out the transitional provisions for using the new bill. In short, the new electronic bill must be used for detailed assessments of costs for work done after 6 April 2018 (either in the form of Precedent S as attached to PD47 or in a format which complies with PD47).

As with all new systems and the implementation of new rules, we will monitor them - and future detailed costs assessments - to see how they work in practice.

Claiming legal professional privilege after inadvertent disclosure

In Belhaj and another v. Director of Public Prosecutions [2018] EWHC 514 (Admin), the Director of Public Prosecutions (the defendant) applied to assert legal professional privilege over certain passages in three documents it had disclosed in error. Those documents should have been disclosed in a way that concealed the relevant passages (redacted) but this exercise was inadvertently omitted.

The inadvertent waiver of privileged documents is covered by Civil Procedure Rule (CPR) 31.20, which provides: "Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court."

The case law on this issue does not entirely reflect CPR 31.20 but the key principles were usefully set out by the Court of Appeal in Mohamed Al Fayed et ors v. The...

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