Lawyers have responded positively to Lord Justice Jackson’s report on fixed costs, while expressing relief that he had modified his initial idea of imposing a grid on all cases worth up to £250,000.
However, many remain concerned about his plans to introduce fixed costs for cases worth up to £100,000 on an ‘intermediate track’, and capped costs for business and property cases worth up to £250,000 through a pilot scheme.
Launching his report at Chancery Lane, Jackson LJ stressed the extent to which he had listened to lawyers and the said the intermediate track was “floated” during the course of his review, which began work in January.
Ed Crosse, president of the London Solicitors Litigation Association (LSLA), said the capped costs pilot for cases worth up to £250,000 would “involve the adoption of established and widely endorsed fast-track procedures (similar to those used by the Intellectual Property Enterprise Court and under the Shorter and Flexible Trials Scheme) which, with robust case management, should provide greater procedural efficiency and certainty to the litigation process.”
Mr Crosse, a partner at Simmons & Simmons, added that the LSLA believed that the capped costs scheme should remain voluntary, following the end of the pilot.
Andrew Langdon QC, chair of the Bar Council, said the review had “in our view correctly” steered away from extending fixed recoverable costs to all cases worth 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.”
Joe Egan, president of the Law Society, said he was pleased that Lord Justice Jackson had listened to “strong feelings from solicitors and reduced the scale of his original plans”.
Mr Egan went on: “In particular, we welcome his recognition that clinical negligence claims require a bespoke process, and claims should only be fixed up to £25,000 – this is in line with Department of Health proposals.
“The new ‘intermediate track’ would bring in fixed costs for cases of somewhat higher value. We will need to consider the detail of this very carefully to see whether it can work without harming access to justice.”
Steve Webber, chairman of the Society for Clinical Injury lawyers, backed Jackson LJ’s conclusion to leave clinical negligence out of the cap.
“This has been a detailed review and he has clearly been swayed by the powerful evidence which shows that such a cap could risk patient safety, our main priority, and could have forced specialist lawyers out of business and left innocent victims with fewer places to receive quality advice at a difficult time in their lives.
“We now urge the government to take note and we ask, as do the health charities and many other experts and politicians, to drop their ill-advised plans to impose a cap on fees in cases judged to be valued below £25,000 and to set up the working party recommended by Lord Jackson.
“Such a cap will encourage the culture of ‘defend, deny and delay’ within the trusts and NHS Resolution (formerly NHSLA) and seriously disadvantage patients across England and Wales.”
By contrast, the Medical Protection Society, which represents doctors, said it was disappointed not to see “a bold recommendation on the threshold, with cases up to the value of £250,000 included”.
Emma Hallinan, the society’s director of claims and legal, said: “Disproportionate legal fees are still a significant issue for claims up to this value and the financial benefits to the NHS would be even greater if the threshold was higher.”
David Cooper, council member of the Association of Costs Lawyers, said: “Lord Justice Jackson has, as he promised, looked to complete the unfinished business of his original report.
“Costs Lawyers have put a lot of work into making the costs management regime work over the past four years and, while we all recognise that there are still improvements to be made, he is right to recognise that it now largely works to the benefit of parties and access to justice alike.
“It has long seemed inevitable that the fast-track would be covered by a comprehensive fixed recoverable costs regime, but Sir Rupert is right to recommend that any extension beyond that be done is careful and measured way.
“It is tricky to strike the balance between ensuring that litigation is not prohibitively expensive while also making it economic for lawyers, and Jackson LJ appears to have had that at the forefront of his mind is putting forward a balanced package of reform.”
Brett Dixon, president of the Association of Personal Injury Lawyers (APIL), said “costs control rather than costs limit should, in APIL’s view, be the focus in any discussion” about personal injury claims.
“But we are not opposed to fixed recoverable costs so long as the processes are designed to fix the amount of work involved.
“We note that proposed intermediate track appears complex and that there is no suggestion of a pilot for personal injury, which could be dangerous.
“Thorough scrutiny of how all elements of Sir Rupert’s recommendations would fit and work together is essential. The real issues will, of course, come out in the detail of implementation”.
Stephen Hines, vice president of the Forum of Insurance Lawyers (FOIL) said the organisation had “long supported” the extension of fixed costs.
“There is much detail to be considered but FOIL supports the incremental approach in the report… The proposals will allow time for the reforms to bed down and be refined before consideration is given to extending the regime further.”
Ian Davies, a partner at defendant firm Kennedys, added that Jackson LJ was to be “commended” in taking “a controlled approach” to extending fixed costs.
“As always there will be claimants and defendants who will seek to establish where the exact boundaries lie within test litigation but the clarity provided thus far allows the rules committee the opportunity to draft a workable framework of rules for the intermediate track.”
Daniel Frieze, a barrister at St John’s Buildings, warned that the value of a case should not be the only factor in determining costs.
“These proposals run the risk of denying many claimants access to justice – a topic particularly relevant following last week’s Supreme Court ruling on employment tribunal fees.
“There is the prospect of specialist solicitors in complex cases leaving the market due to the fixed fees, leaving those with lower incomes unable to access the best legal help…
“Even with a fixed-cost regime, there will inevitably continue to be disputes. Efforts to end the ‘cost wars’ have so far failed and this regime may not avoid the use of resources. The current system is underpinned by the notion of fairness, and the focus should be placed firmly on tweaking the current system to prevent misuse, rather than attempting wholesale change.”
The next step will be a consultation. David Lidington, the Lord Chancellor, said: “I am very grateful to Sir Rupert Jackson for the wisdom, industry and efficiency he has demonstrated in compiling this report, which makes the case for extending fixed recoverable costs in order to control the costs of civil litigation.
“Sir Rupert has proposed a range of measures which the government will now consider carefully. As we have said previously, we will consult before any recommendations are implemented.”