Jackson's recovery position

The Law Society and Lord Justice Jackson have form. The Society has often voiced concern that his reforms have made the justice process more expensive and reduced access. So, when Jackson LJ came to Chancery Lane to launch his report on fixed recoverable costs, one would not have expected a love-in. Yet the tone was conciliatory; two former foes, one in the home of the other, showing mutual respect.

Jackson’s latest report is a slim volume compared with the work that started his reforms nine years ago. A chapter is devoted to reviewing those reforms and where we are now.

One detects a partial lament that he is unable to deal more strongly with the actual costs of litigation to the parties, with a longing look cast toward Germany’s accusatorial system. As Jackson acknowledges, the adversarial system of litigation is inherently expensive, but he contends that there is much scope for procedural reform that can reduce costs here.

Jackson and others often perceive that the serious costs ‘crime’ lies in adversarial disclosure. The cost of that process has sky-rocketed over the past 15 years with the proliferation of emails and electronic documents. Even in small cases, e-disclosure can be the most expensive item on the adversarial menu. The bench often contends that the vast majority of documents go unused and that rarely does a case turn on a ‘smoking gun’ document that has avoided the shredder. That is true – but try explaining it to a party with absolutely no trust of the opponent convinced that the telling document is ‘in there somewhere’.

Jackson posits that the e-disclosure monster must be tamed, particularly in lower-value claims. That is not his immediate task here, but he is not alone. Working parties are considering how e-disclosure can better be managed by the court.

Jackson first deals with fixed costs in the fast track (claims of £5,000-£25,000). To him this is unfinished business.

Some will dissent, but an extension of the existing fixed-costs regime in the fast track is a shoo-in. Most solicitors, and the Law Society, do not object to the principle of fixing recoverable costs – what matters is how it is effected. Jackson proposes four bands of complexity and different levels of recoverable costs for each band. He derives his figures from research into largely defendant data provided by a costs solicitor’s firm.

No doubt claimant firms will want to interrogate the conclusions. From my own experience, collecting sufficient data and its application are devilishly difficult.

The Society has long said that one cannot look at a fixed-cost regime without also considering process. Jackson accepts this and in addition to addressing the disclosure issues, also puts the regime into the context of the Briggs reforms on process for fast-track claims.

Jackson also proposes a new intermediate track for claims of £25,000-£100,000. He has long accepted claim value does not necessarily dictate the complexity of the process. He proposes that the new intermediate track should be for monetary claims of a relatively simple nature. Again, he proffers four bands dependent on complexity, with the costs derived (‘generously’) from the same sources as the fast track proposals.

The review also covers the proposed pilot of capped costs for straightforward claims up to £250,000 on (for the time being) an opt-in basis and the issue of capped costs in judicial review.

At last week’s launch, Society vice-president Christina Blacklaws made the point that there is no objection in principle to a fixed-costs regime for the right cases, with appropriate procedure and at a level of recovery that aligns with the actual expense of doing the work. The Society will now consider whether what Jackson proposes meets those criteria.

This is only is stage one: a public consultation by the Ministry of Justice must follow.

David Greene is senior partner at Edwin Coe and a Law Society Council member