Organisations across the profession have urged Lord Justice Jackson to be cautious about significant increases in the limit for fixed costs.
The judge is in the process of gathering evidence for his review into a potential extension of fixed recoverable costs for all civil claims worth up to £250,000.
The consultation closes this week, and Jackson will find a body of evidence in his inbox urging him to rein in plans for such a major extension.
The Law Society said today the proposals risk making many cases economically unviable, leaving either successful claimants, or their lawyers, to foot the bill even if they have won their case.
President Robert Bourns said: ‘If the sum is fixed, then for at least some cases and possibly most, the costs that a successful party could recover will fall significantly short of the costs they have incurred.
‘Either they will have to meet the costs out of their own pockets, or out of their compensation, or the solicitor will have to do the work for the recoverable costs only.’
Bourns said the Society acknowledges that fixed costs offer assurance for both sides in straightforward, low-value claims, but that it was wrong to apply the same rules to all cases.
The Commercial Litigation Association insisted that fixing recoverable costs by reference to monetary value was itself ‘unjustifiable’.
Its consultation response added: ‘There is no correlation between the value of a case and its complexity. A case worth a lot of money may be simple in terms of complexity and detail, whereas a case worth a relatively small amount of money may be complex and time-sensitive.’
The group said there needs to be improvements in the efficiency of the court service before any recommendations to extend the fixed costs regime, with a simplification of procedural rules and a lowering of judges’ expectations from represented parties.
It added that unreasonable conduct of opposing parties and litigants in person is a significant contributing factor to the cost of litigation.
The Association of Costs Lawyers said it was too soon after other civil justice reforms to consider such an extension of fixed fees.
It said Jackson’s own 2013 reforms, which imposed new directions on budgeting, have already helped to control excessive costs and need more time to take effect.
Simon Murray, chair of the ACL’s fixed costs working group and chief executive of specialist costs law firm NeoLaw, said: ‘The overarching concerns of the membership are that if there is to be any extension to FRCs, timing is key and the level of fees must be informed by meaningful data provided by all of the key stakeholders in the legal industry.
‘Moreover, it is extremely unlikely that a ‘one-size-fits-all’ system will be achievable and so a tailored approach to the various classes of action will be required.’