Lord Justice Jackson said yesterday that 10 of the 16 causes of excessive costs in civil litigation he identified eight years ago have been eliminated or are on the way to elimination.
Jackson LJ said that despite “grumbling” from lawyers and “harsh words directed mainly at me”, ignorance of the costs rules in the legal profession was “sorted”.
In an upbeat speech to the Expert Witness Institute annual conference in London, he said no progress had been made in only six of the causes of excessive costs he identified at the start of his costs review in 2009.
On court fees, which he criticised as “too high”, Jackson LJ said: “I might as well bleat at the sea like King Canute. Instead of being reduced, they’ve gone up. I’ve made harsh comments about that, but no one has taken any notice.”
On guideline hourly rates, which Jackson LJ described as “not satisfactorily controlled”, he said the government had followed his recommendation and abolished the body which set them but failed to set up a new one, although the issue was “receding in importance” as a result of his other reforms.
On pre-issue costs, where there is “no effective control”, the judge said primary legislation was needed, enabling costs management and a grid of costs to be introduced which would “crack the problem”.
He said the lack of staff and IT resources in the civil courts despite increased fees were “outside my control”, though he noted that change was on the way.
Further, the first two causes for excessive costs that he had identified, “time-consuming procedures” required by the rules of court and the “complexity of the law” in some areas of litigation, were “still the case”.
Turning to the future, he told delegates, many of whom were medical experts, that medical negligence was a “very difficult subject”.
Referring to his latest report this summer on extending fixed costs, which recommended a “bespoke process” and grid of fixed costs for medical negligence claims under £25,000, he said that although there was a large number of cases in this category, they tended to be “extremely complex” because of issues including liability, quantum and multiplicity of experts.
He said he did not imagine many medical negligence cases being suitable for the fast-track, or his proposed intermediate track for cases worth up to £100,000 where liability was in dispute.
However, he said that following its work on a bespoke procedure for noise-induced hearing claims, there was a “general belief that it would be possible” for the Civil Justice Council to design a similar process for medical negligence claims up to £25,000.
“I am confident that such a scheme is attainable,” he said.
Jackson LJ said that, generally speaking, fixed costs on the fast track were “working extremely well”, and the number of cases had increased, rather than dropped.
Despite getting off to a “bumpy start”, he said the feedback he was getting on costs budgeting was that “solicitors and barristers are much better at budgeting cases and discussing costs at hearings”.
Looking back at the “little project” of costs reform which had dominated his time at the Court of Appeal over the past decade, Jackson LJ added: “I think you will accept that some improvements have been achieved.”