Amid concern at the level of costs in civil cases, District Judge Jeremy Rawkins says a fixed regime would offer a reasonable outcome

When I first entered private practice, litigation was sniffed at and subsidised by the partners conducting non-contentious business. It is some years since I left practice, but even then the litigation boot was firmly on the other foot. Perhaps nowadays we all sit rather uncomfortably when the topic of costs in civil proceedings is raised.


Recently, in an unremarkable claim by a child involving little documentation before me for settlement approval, the costs were three times the damages. The statement of costs produced disclosed nothing to support any criticism of the claimant's solicitors. Nevertheless, that sort of case raises the question as to whether principles of reasonableness and proportionality have been allowed to escape.


It's hard to contend that the way in which the law governing costs has developed sits easily with the principles of fairness and economy espoused by the civil justice reforms. It should not be the role of the court to interfere with the legitimate contractual relationship between solicitor and client, much less to dictate the rate of financial reward, but it is the court's duty to regulate the extent of costs recovery for the victor over the vanquished. The valuable demarcation between solicitor/client costs and party/party costs has been eroded so that there is no real practical distinction.


Currently the pursuer of a parlous case, which by definition deserves to be defended, may recover twice as much, or more, in costs if he wins against the luckless defendant. Why should the protagonist of a cast-iron case facing a resolute defendant be entitled to only half as much for the same work? Should a success fee calculated at the outset of a claim, when little is known of the defendant's position, endure throughout the claim, however the defendant's position might shift? Is an insurance premium a legitimate recoverable cost of litigation?


If these are real anomalies, they have no real pretension to being part of an indemnity-based costs system, however creaking. The principle of proportionality has been abandoned. Not officially, of course - it is still there as a guiding principle in the rules, but it requires some mental acrobatics to apply it, and there is no safety net for the hapless costs judge whose job it is to try.


Why should the profession be worried? The court, albeit invited to do so, has involved itself in the market-place.


The best form of regulation of solicitor and client costs, subject to professional constraint, is the operation of the market itself. It has never been easy to defend the lawyer's position in any debate about costs, and the ballooning of legal costs in litigation risks public outcry.


A possible solution would see the end of the indemnity principle in favour of a fixed or predictable costs regime based on reasonable and proportionate recovery rates for the work done, leaving to the solicitor and his client the negotiation of additional reward subject to market forces.


If it is the solution, we should have to devise a proper and responsible system of public funding in non-damages cases to ensure rates of pay that are reasonable and proportionate by the same standard.


Some radical thinking is required from the profession, judiciary and government to secure access to justice that is fair in terms of both outcome and cost.


The debate has already started, prompted by the Civil Justice Council. Now may be the time for it to be joined with enthusiasm.


District Judge Jeremy Rawkins is president of the Association of District Judges and a Crown Court and county court recorder. He sits at Manchester's Courts of Justice