AIPPI Event Report: The Implementation of the Jackson Reforms

Mr Justice Arnold

Further to the AmeriKat's Mardi Gras patent litigation post here, last night's AIPPI event saw the continuation of the judicial lectures on the Jackson Report with Mr Justice Arnold up to bat.  As predicted, although there was much less nudity and throwing of beads than one has come to associate with Mardi Gras another speaker at the event, Rowan Freeland (Simmons & Simmons), still managed to lace a presentation on the new costs reforms with imagery of experts outperforming each other in a hot tub.  Hoping that that has piqued your interest, the IPKat has relied upon Freshfield's trainee Janhvi Chandha generously loaned out by IPKat friend and master of all AIPPI events in the UK, Justin Watts, for a report of the evening for the Kat's readers:

"At AIPPI UK’s event on the Jackson reforms last night, hosted by Freshfields, Mr Justice Arnold discussed the IP recommendations of the Jackson Report. He divided his focus between the IP recommendations that had already been implemented and those which were yet to be implemented. This lecture was a part of a series on the Jackson Report, the remaining of which can soon be found at http://www.judiciary.gov.uk/ publications-and-reports/review-of-civil-litigation-costs/lectures. 

One of the recommendations of the Jackson Report that has been implemented relates to case management. The court can be expected to be far more proactive in case management post-Jackson. The new edition of the Patents Court Guide deals with active case management including matters such as whether there is a need for an oral hearing. The Jackson Report contained recommendations relating to the reform of the Patents County Court (PCC). In particular that the procedure of the PCC be made simpler and cheaper, restrictions be placed on the recovery of costs, a cap on costs and limits on financial recovery available from the PCC. These have been implemented by amendment to the Civil Procedure Rules and by Statutory Instruments. The consensus so far appears to be that the implementations of the IP recommendations of the Jackson Report have been a success. The case load of the PCC has doubled in the last two years and cases that would not have been litigated before are being litigated. Other recommendations that have been implemented include the PCC giving guidance on statements of case and the introduction of a small claims track as part of the PCC. 

There are a number of IP recommendations of the Jackson report that are yet to be implemented. These primarily include reconstituting the PCC on a free standing basis and repealing the section of the Copyright, Designs and Patents Act 1988 that restricts the power of the High Court to transfer cases. It is necessary for the primary legislation contained in the Crime and Courts Bill to be enacted to implement these recommendations. Further in his report Lord Jackson noted that concerns regarding threats provisions and the pre-action protocol for IP were beyond his review as they required changes to substantive law. However the Law Commission is preparing a consultation paper regarding the same. Commenting generally on the Jackson Report, Mr Justice Arnold noted that there were three areas of IP litigation that would be impacted the Jackson Report. Firstly there are likely changes to funding arrangements and fee arrangements. Secondly there are likely to be changes to the litigation process, particularly in relation to case management and expert evidence. Lastly there are likely to be changes to cost management. 

Rowan Freeland of Simmons & Simmons went on to outline the effects of the Jackson Report on costs and budgeting. These will introduce a profound change to the way litigation is conducted. Rowan’s slides will soon be available at www.aippi.org.uk."

The biggest over-arching change is that of increased transparency. With the spectre of costs-budgeting well and truly upon us both Mr Justice Arnold and Rowan explained that litigants would be a facing a more transparent litigation process where not only the court but your opponent will be able to snoop into your costs budget observing how much you have allocated for a particular issue and if it is reasonable.  So gird your loins IP litigators, Precedent H will soon be here...