The Association of Costs Lawyers (ACL) has called for greater use of specialist costs judges in county courts and a role for costs lawyers as part of the new breed of case officers who will be supporting judges, in its response to the interim report from Lord Justice Briggs’ civil courts structure review.
The ACL also warned that the current operation of Money Claim Online and the small claims mediation service needed close examination before they were used as a “benchmark for what is to come” in the development of online dispute resolution and use of ADR.
The ACL told Lord Justice Briggs that “by and large” it supported his programme for reform, but identified areas of concern.
Considering the report’s overview of the current court structure, the response said: “Legal costs is a highly specialised area. It is a fact that most solicitors and barristers do not embrace costs as a specialism whilst in practice, therefore it follows that as deputy or district judges, they do not have the knowledge at their fingertips. Legal costs is a learned skill and needs to be recognised as such.
“Some set about the learning process with deliberation and are skilled and interested in what they do. Unfortunately, that cannot be said for a large number, who have no interest in dealing with the issue of costs and quite often allow their dislike of the topic to cloud their judgment when making decisions. Members have reported instances when assessment costs have been increased by the intransigence of the presiding judge.”
Briggs LJ went on to highlight the need for judges to specialise in civil work, and within that to specialise in specific areas, which would be aided by consolidating court centres. The ACL said ensuring this applied to costs would most likely reduce “significantly” the inconsistencies in costs rulings in those regional courts where there are no specialist costs judges.
Briggs LJ backed the transfer of some of judges’ more routine and non-contentious work to supervised case officers. The ACL said that given the challenge of some district judges’ attitude towards costs work, “we recommend that costs lawyers be considered for appointment as case officers in costs-related matters”.
The ACL urged that further scrutiny of the current online system be undertaken. “Experience tells us that using Money Claim Online, for example, is not straightforward, even to someone with a legal background. To use a system which is not operating adequately as a benchmark for what is to come is, in our opinion, flawed. A full survey of users of the process should be undertaken, before that process is used as a template for what will be an expensive and time consuming exercise, if the exercise is not to fail.
“Secondly, we suggest that the move toward a less adversarial approach to litigation has to be the way forward. This means that the emphasis on ADR is a positive step in the right direction and one to be encouraged; however, experience of using the small claims mediation process has not been positive. Once again we would suggest a full survey of users should be undertaken.”
More generally the ACL said it was concerned that not enough attention had yet been paid to whether the changes outlined by Briggs LJ were technically feasible, and whether there were sufficient resources to plan, deliver and monitor the change.
The response also called for a rewrite of the CPR “so that they are easily read and understood” and to stage the introduction of the proposed Online Court, starting with cases worth up to £10,000 (Briggs LJ suggested £25,000).
ACL chairman Sue Nash said: “Costs are an integral element of the court process and in looking at the overall structure of the civil courts, Lord Justice Briggs has identified positive solutions that should improve the resolution of costs disputes. Putting the right people in the right roles is a feature of modern legal practice, and we believe that as case officers, costs lawyers could make a significant contribution to the justice system.”