Lawyers have reacted with caution to government plans to implement Sir Rupert Jackson’s recommendations for fixed recoverable costs, especially given the evidence behind the figures.
The Ministry of Justice issued a consultation last week that said it intended to introduce the reforms pretty much as set out by the judge.
Law Society president Christina Blacklaws said limiting costs could have both “positive and negative impacts on access to justice” and needed to be carefully calibrated so as to be “fair to everyone engaged in a claim”.
She continued: “Crucially, justice must be attainable for all… Fixed recoverable costs should usually only apply to ‘low value’ and non-complex claims – exemptions should be available for complex or unusual cases.
“Rates and thresholds should be regularly reviewed and adjusted by reference to appropriate indices and to take account of changing processes and developments in technology.
“Appropriate and efficient IT is essential to the proper delivery of any new fixed costs regime and we will need to see court procedures and rules properly aligned with the launch.”
Ms Blacklaws stressed the importance of underpinning the rates and thresholds with “strong empirical evidence and research to protect people’s ability to uphold their rights, whatever their status or wealth”.
The lack of evidence was a theme taken up by the Association of Costs Lawyers (ACL) – the Ministry of Justice noted that the figures produced by Sir Rupert were based on data provided by one defendant law firm.
An ACL spokesman said: “The question of fixed costs ultimately comes down to the figures. Do they provide genuine access to justice and allow a party to conduct litigation effectively, or do they only work for the privileged few who can afford to pay for litigation irrespective of what they recover from an opponent.
“The proposed figures for the fixed costs adopted by the Ministry of Justice in the consultation are nearly two years out of date and were based on just one law firm’s sample of cases, where it acted for the defendants.
“The government needs a much more rigorous statistical base if it is to widen the use of fixed costs, and also needs to commit to regularly reviewing and updating them. This is absent from the consultation, and indeed history shows that it does not happen, to the detriment of clients, their lawyers and access to justice.
“The fact is that nobody else supplied figures to Sir Rupert Jackson. This shows that, unless there is engagement, apathy may play a part in determining the future of funding within litigation generally.
“All interested parties need to recognise the importance of engaging meaningfully with this consultation, including providing data, absent which they will have to accept the outcome without complaint.”
Brett Dixon, president of the Association of Personal Injury Lawyers, said: “Efficiencies in process and procedure are important. Fixing recoverable costs does not mean fixing actual costs.
“Claimants already have significant liability for court fees and just introducing fixed costs without consideration of the necessary process will add to this burden.
“Attention must be on helping to control costs, including any recoverable costs of those representing the wrongdoer based on the work they do, rather than limiting what is recoverable from those responsible for putting the injured person back on track.”