Many of the causes of excessive costs have been eliminated but litigation is still too expensive, Sir Rupert Jackson has claimed on the eve of his retirement from the Court of Appeal.
In a speech that signalled the judge’s hurt and exasperation at the criticism that has come his way over the past decade, he nonetheless argued that it was “all worth it”.
Speaking to the Cambridge law faculty yesterday ahead of his retirement tomorrow, when he reaches the age of 70, Sir Rupert said he still thought costs were too high, but that “many of the causes of excessive costs have been eliminated and significant improvements have been made in the litigation process”.
He continued: “As things stood 10 years ago, someone had to do something about costs (especially the absurd CFA/ATE regime). Whoever received that poisoned chalice was bound to make themselves extremely unpopular – unless they ducked every controversial issue.
“Despite all the criticisms which [I have] received over the last ten years, the blunt and inescapable fact is that the Jackson reforms have achieved significant reductions in the costs of litigation…
“Most of the reforms have worked well, but a few have not. Those reforms which work well have also promoted access to justice.
“[So] was it all worth it? That is for listeners and readers to judge. But it is submitted that the answer is yes.”
Reflecting on his work since being appointed in 2008 to review the costs of litigation, the judge observed: “To spend 10 years reforming the rules of procedure in an effort to reduce litigation costs is about as unglamorous as it gets.
“Lawyers generally don’t like change and they particularly dislike anyone meddling with costs. Therefore, the task allotted to me was bound to, and did, generate quite a few irate letters to newspapers and numerous onslaughts in the legal journals.
“Almost everyone perceives the public interest as residing in a state of affairs which coincides with their own commercial interests. That is not dishonesty or disingenuousness. It is just human nature.”
He bemoaned the failure by a university or similar body to systematically monitor the effectiveness of the reforms: “Instead there has been a stream of journal articles, usually written by people who dislike this or that aspect of the reforms. For obvious reasons, no-one who is content would dream of writing an article to say that…
“When a reform works well, no-one remembers where it comes from. But when people dislike a reform, the author comes under heavy gunfire.”
Going through the reforms, Lord Justice Jackson argued that most of them have been successful.
Speaking about recoverability, for example, he said: “Recoverable success fees distorted incentives and drove up costs massively. [Their] abolition… has substantially reduced litigation costs.
“When combined with several counterweight measures (including increased damages, enhanced rewards for claimant part 36 offers, restriction of success fees deductible from personal injury damages), this package of reforms has controlled costs without inhibiting access to justice. There is no evidence that the reforms have led to a drop off in claims, quite the reverse.”
Damages-based agreements (DBAs), however, have not been a success, which Sir Rupert put down to the failure to implement his recommendation to abolish the indemnity principle, the unsatisfactory nature of the DBA rules and the fact that the regulations do not permit ‘hybrid’ DBAs, “thereby inhibiting access to justice for no remotely sensible reason”.
He said: “There is a pressing need for work here by the Ministry of Justice and the rule committee.”
Jackson LJ also recognised that the profession was becoming “impatient” for guidance on the proportionality test from the Court of Appeal.
“The remedy lies in their own hands. The Court of Appeal can only decide the cases which come before it.”
Sir Rupert also identified the control of costs incurred before the costs management process as an area still needing reform.
In his supplemental report last year, Sir Rupert put forward a solution, but this required primary legislation.
“Once that legislation is in place, the rule committee can draw up a grid of acceptable pre-action/pre-case and costs management conference costs for different categories of case, coupled with a procedure for pre-action applications for permission to exceed the specified limits.”
A key element of his first report was that there should be no more cuts to legal aid. “On the very day when the reforms were introduced, there were swingeing cutbacks in civil legal aid. I regret and deplore those cutbacks.
“Likewise, my plea for restraint in setting court fees has fallen on deaf ears.”
As to whether his recommendations last year for fixed recoverable costs will come to fruition, Sir Rupert said: “Obviously, this paragraph is speculation. Delays are inevitable following the ministerial re-shuffle in January 2018. Based on past experience, however, it seems likely that the government will accept most of the proposals.
“The recommendations are backed up by evidence and supported by reasonably full argument. Also, they follow wide consultation.”