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If we must have fixed costs (and I don't think that that's necessarily been established, Jackson referencing his own reports notwithstanding), why not have a system where:

(a) fixed costs are presumed (at a sensible level please);

(b) parties can tick a box on the DQ if they think that the fixed costs are too high / too low in this case, and give reasons why (to be agreed between the parties and approved by the court as usual).

(c) If they tick the box, the parties can suggest a ballpark fixed fee. No precedent H, even if you tick the box. It's an awful exercise which is never right anyway.

(d) That fixed fee then applies, and unless anything totally unexpected happens / there's a Part 36 offer / a party behaves outrageously there is no assessment of costs afterwards.

Reading Jackson's proposals, I'm genuinely worried that we'll end up with fixed fees followed by detailed assessment whenever anyone says that the fixed fee was too low. Let's not front-load it too much, but let's at least give litigants a chance to set the fixed fee at what they want it to be and give themselves some certainty. Costs budgets have failed to do that (and have just racked up loads more in costs) - this would be a way to address that.

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