Fixing the level of recoverable costs is not possible without reforms to procedures, Lord Justice Jackson conceded today, publishing his long-awaited review of civil litigation costs. 'You can't just slap a fixed recoverable costs regime onto existing procedures,' Jackson said.
His report proposes:
- A fixed grid of fixed recoverable costs for all fast-track cases. 'This is really a no-brainer,' he said.
- A new 'intermediate track' for certain claims up to £100,000 and which can be tried in three days or less with not more than two experts on each side. This 'will make a real contribution to promoting access to justice', he said.
- Piloting a 'capped costs' regime for business and property cases up to £250,000. Procedures for the pilot would follow 'but not slavishly' those of the Intellectual Property Enterprise Court.
- New measures to limit recoverable costs in judicial review cases. Jackson favours extending the cost-caps that exist for environmental challenges under the so-called Aarhus rules be extended to all JR claims. He also recommends introducing costs management in 'heavy JR' cases.
Jackson's proposals amount to a significant scaling back of Jackson's previous suggestion that fixed costs could be applied to all claims up to a value of £250,000.
Introducing his proposals at Chancery Lane this morning, Jackson said he had found a 'very substantial divergence of opinion' on whether fixed costs should be applied to cases outside the existing fast-track. He accepted the force of the point made by the Law Society and the Bar Council that where recoverable costs are to be fixed, procedures will also need to be fixed. 'Obviously that won't be appropriate to every case,' he added.
The Law Society welcomed the review's proposals as 'good news for solicitors and consumers alike. 'A "one-size-fits-all" approach to the regime would have risked making many cases economically unviable,' Law Society president Joe Egan said. 'Fixed recoverable costs require a fixed process to be workable, as fixed costs do not reduce the work done by solicitors. We hope that the process can be streamlined for cases affected by fixed costs before they’re introduced, in order to ensure that the costs will be manageable for solicitors and claims can still be brought.'
The view was echoed by the Bar Council. Andrew Langdon QC, chair of the bar, said: 'The review, in our view correctly, steers away from extending fixed recoverable costs up to £250,000. Encouragingly, there are also proposals in the report for a grid of recoverable fees which include ring-fencing fees for counsel or other specialist lawyers in more complex fast track cases and for intermediate track cases. These include trial advocacy fees.'
In a statement, Lord Thomas of Cwmgiedd, lord chief justice and Sir Terence Etherton, master of the rolls said the report analyses ways in which the recovery of costs can be made more proportionate and so promote access to justice in civil litigation. ‘The report now falls to be considered by us and the government, which is committed to consulting before any proposals are implemented.’
However Egan commented: 'We still have reservations that introducing fixed recoverable costs without robust empirical evidence will negatively affect access to justice, if the impact of these proposals are not carefully assessed. This is work that should be done during the Ministry of Justice consultation period and prior to implementation.'
Senior costs judge Master Gordon-Saker will be keynote speaker at a Law Society commercial litigation conference on 16 October that will consider the repercussions of Lord Jackson's fixed costs review. For more details see here.
The professional reaction to the proposals put forward by Jackson are also available.
Commercial litigation conference 2017 – 16 October
This popular half-day event is your opportunity to hear from leading litigation practitioners and gain insight into the findings of Lord Jackson's fixed costs review. We are delighted to announce that this year's keynote address will be delivered by Master Gordon-Saker, senior costs judge. Click here for more information.