Lord Justice Jackson, who has previously strongly advocated a blanket extension of fixed costs, yesterday insisted that he will lead a new review of fixed recoverable costs ‘with an open mind’.
After inviting written evidence or submissions to assist the review, Jackson told a London Common Law and Commercial Bar Association event last night that he must now ‘listen very carefully’ to the submissions he receives and ‘carefully examine’ the evidence respondents choose to lodge.
Jackson told the event that he has appointed a panel of 13 assessors, including two economists.
He said: ‘I have got to consider how high the regime of fixed costs should go, what figure, what categories of case it should apply to, what about judicial reviews… I will need to consider how we deal with disbursements. The bar [is] a major disbursement, expert fees as well.
‘How should they be accommodated in a fixed costs regime? There is a great deal of detail to be worked out. I shall consider very carefully the evidence which comes in.’
Jackson said not all his assessors were sympathetic to his proposals, adding that ‘all points of view’ would be represented by them.
He told the event: ‘I hope and believe introducing a regime of fixed costs for a raft of cases above the fast-track will promote access to justice and will be of benefit to the wider community – a view I have always expressed. But I shall approach all of your submissions and observations with an open mind.’
Written evidence and submissions must be sent by Monday 16 January. Jackson will publish his recommendations on 31 July. A government consultation will follow.
Jackson told the event that costs budgeting is an essential element of any programme to make the costs of litigation proportionate.
‘Litigation is a commercial enterprise,’ he said. ‘There are no other commercial projects which people [enter] without a budget. If you do not have a regime of fixed costs, some form of costs management or costs budgeting is essential.’
Jackson noted that fixed costs have been introduced in the Intellectual Property Enterprise Court, which has since seen an ‘upsurge’ in work.
He said: ‘Some three-and-a-half years have now elapsed since other reforms I recommended have been implemented. There’s a suggestion [that the] proposal which I made, that we should review fixed costs for bigger cases, is now appropriate.
‘A number [of reforms] have bedded in or are in the process of bedding in. It’s therefore appropriate to give serious consideration to fixing recoverable costs in the lower regions of the multi-track.’
He added: ‘Commentators never miss a chance to stick a few knives in me. If my persecutors [took] the trouble of reading the report… they will see my proposals are exactly what I have been arguing for since day one.’