Lord Neuberger, the president of the Supreme Court, has said it is “more than disappointing” that over four years after government backing for the Jackson reforms “we still do not have fixed costs for all fast-track cases”.
He said he hoped fixed costs could be extended further to “smaller multi-track cases”, such building disputes which could not be settled quickly out of court.
“When I was Master of the Rolls, I said publicly on a couple of occasions that, if we could not achieve proportionate costs through our current systems, then we may have no alternative but to go over to fixed costs,” he said.
“Although they represent significantly rougher justice than the costs management route, they have the advantage of consistency across the system and no extra costs and time in preparing and considering costs budgets.”
Speaking to the Manchester Law Society and Northern Circuit Commercial Bar Association, Lord Neuberger said fixed costs were “desirable throughout the fast-track” because of the importance of costs control and proportionality.
“We are still waiting on the Ministry of Justice to achieve this, although it is fair to record that there is now a fixed costs system in place for fast-track personal injury cases.
“Fixed costs throughout the fast-track was one of Rupert Jackson’s recommendations which was accepted more than four years ago.
“Particularly bearing in mind the government’s fundamental duty to enable access to justice and their swingeing cuts in civil legal aid, it is more than disappointing that after all this time, we still do not have fixed costs for all fast-track cases.”
Lord Neuberger said the importance of proportionate costs could not be overstated.
“If Mr Abramovitch and the late Mr Berezhovsky wished to spend millions of pounds on legal fees fighting about hundreds of millions of pounds’ worth of assets, that’s fine with me – although I may be a bit green-eyed about the lawyers’ fees and there is a serious argument to be had about the current level of court fees in that sort of case.
“The costs, though eye-watering to many, were proportionate and the parties could look after themselves.
“But if my builder wants to claim £30,000 for work done to my house, and I contend that his work was valueless and want to counterclaim for £20,000 for damage he allegedly caused, the costs of the resultant four-day case with many witnesses of fact, expert evidence, disclosable documents, legal argument, means that we would both be mad to contemplate litigation.”
Lord Neuberger said fixed costs could be extended further to cover “smaller multi-track cases”, such as building disputes of this kind, if they could not be settled by techniques like online dispute resolution or early neutral evaluation.