Following what seemed an eternity, Lord Justice Jackson’s supplementary report to his review of civil litigation costs dealing with fixed costs was published on 31 July.
This comprehensive report quelled many concerns about fixed costs, such as their being introduced up to the £250,000 figure. Jackson had previously said this ‘would save both time and costs’ by doing away with the need for costs budgeting and costs assessment. His views moderated earlier this year, suggesting that it would be problematic to apply fixed costs in the multi-track in cases above £250,000. In the event a compromise has been advanced, fixing costs in cases up to £100,000.
Considerable changes to the timetable of the reforms are also becoming apparent. In a lecture in January 2016, he said: ‘If the political will is there, this whole project could be accomplished during the course of this year.’ But progress has been slow. Not until 11 November 2016 was it announced that Jackson had been commissioned to undertake a review of fixed recoverable costs, to be completed by 31 July 2017.
Now, two months later, and solicitor Kerry Underwood – who assisted Jackson with the fixed costs review – said that their implementation would be delayed. Experts have said the reforms are now unlikely before April 2019, with a Gazette report noting that this had provoked ‘fury’ in some quarters.
So what now? There are never any guarantees in life and when combining radical reform of legal practice with an uncertain political landscape, this is perhaps not surprising. For what it is worth, I thought the supplemental report was a sensible compromise between fixed costs and a capped costs pilot for business and property cases.
After more than 30 years in the law, I am perhaps a little cynical. I fear the last 10 years have seen increasingly more reactive rather than proactive planning and implementation. Had Lord Woolf’s costs management intentions been applied with the introduction of the Civil Procedure Rules, or Jackson’s proposals for costs budgeting introduced in a more strategic fashion, we may not have had what I regard as the knee-jerk foray down the path of fixed costs. This was always going to be problematic when faced with the well-worn but obvious objection that ‘one size doesn’t fit all’.
Views on the success of costs budgeting have changed dramatically since this time last year, perhaps born more of desire than reality. Budgeting should have been given more time to embed before fixed costs became a sticking plaster to do away with both this problematic process and final costs assessments.
This poorly prepared approach to change in legal practice is mirrored in the proposed introduction of the new format Bill of Costs, which has been piloted within practice direction 51L since the end of 2015. Its introduction has been delayed from the longstanding date of 1 October 2017 to 1 April 2018 on the ground of unifying technology between the Senior Court Costs Office and the county courts. But I cannot avoid the thought that the delay has more to do with the complete absence of any real stress testing of the new model bill, or any revised practice directions, addressing the assessment of a completely new beast.
These delays are needed. Practitioners and the judiciary alike have had enough of treading water in an ocean with no landfall in sight. Indeed, in January, giving evidence before the House of Lords’ constitution committee, Professor Richard Susskind – IT adviser to the lord chief justice – recommended caution when implementing IT projects, such as the online court. He strongly urged an ‘incremental, Lego-like’ approach, building carefully and conservatively on successes: ‘It’s time to do a feasibility, or scoping, study. What you don’t do is jump in… you need to have a more phased approach.’
I go along entirely with this sentiment in relation to fixed costs, the new Bill of Costs and the push to digitise the civil courts. It is time to consolidate and perhaps get the grassroots right first.
To quote Susskind, from an engagement at the Westminster Legal Policy Forum in June: ‘What are we training our young lawyers in very large numbers to become? Are we expecting them to be traditional, bespoke, face-to-face advisers who charge by the hour? Or should we be producing lawyers who are flexible, team-based, technological, sophisticated and commercially astute – hybrid individuals who can transcend traditional boundaries?’
While delivering training on the new format Bill of Costs and the benefit of sophisticated time-recording to reap the benefits of this electronic bill, it is clear to me that the wrong message has been broadcast to time-record in any way you like, even though J-codes (or the schedule 1 codes to PD 51L) would be an advantage. Consequently, very few law firms have done anything to get ready for the new bill, which will mean an enormous amount of time spent retrospectively addressing time entries to make them fit. That completely defeats the principal objective, to save time and money through a largely automated process.
I agree that civil lawyers and civil courts will benefit beyond all recognition by embracing technology, but this needs to be a joined-up, well-planned and gradual process. The training of new and old lawyers alike and the judiciary should drive the readiness for change. The law, as someone once told me, is an oil tanker, not a speed boat, it is very slow to change direction. Equally, the consequences of steering the wrong course will be considerably worse. We need to steer a steady course, rather than batten down the hatches and expect everyone to ride a storm of ill-prepared changes.
Richard Allen is a senior consultant/costs lawyer at Burcher Jennings