Jackson on fixed costs: our reaction
Reuben Glynn, Managing Director, PIC, provides a handy guide to the Costs Law implications of the Jackson Report on Civil Litigation Costs, published on the 31 July 2017.
Jackson Report > Key points:
- Fixed costs to be extended to all cases up to £25,000 (i.e. remaining fast track cases).
- An intermediate track for cases up to £100,000 within which fixed recoverable costs (FRC) will apply.
- Intermediate track cases should have a trial of no more than three days with a maximum of two experts on each side
- The new FRC regime should apply to cases which are principally for monetary relief.
- Clinical negligence cases will ‘seldom’ be anything but multi track unless there has been an early admission of liability. (note that the NHS Resolution has admitted to their own poor performance in early resolution of cases).
- Dilution of the Broadhurst v Tan principle, which means parties that fail to accept a reasonable Part 36 offer within a reasonable period will only obtain an uplift on their FRC.
At the time of writing it is 31 July 2017; the day of Lord Justice Jackson’s eagerly awaited report. The seismic event that will send shockwaves throughout the legal profession and beyond. The biggest changes to the Legal Costs profession arguably in history.
Well, not quite…
Instead of the anticipated radical reform there is a call for a more subtle ‘wait and see’ approach to proposed changes in legal costs. This is a marked change in the manner of this report compared with that of his previous one in 2009. Gone are statements of the need for simplification, of avoiding the balkanisation of the legal profession and relentlessly endorsing a ‘one size fits all’ policy with a costs matrix that can be scrawled on the back of a coaster.
Jackson should be applauded for these conclusions. He appropriately acknowledged this job was a thankless one that nobody wanted to do. It was a gruelling process of information gathering from numerous sources with conflicting interests with the result being probably the biggest change to civil litigation since the Woolf Reforms.
The report acknowledges that you cannot determine costs by simply considering the damages recovered, but that all other factors must be included such as the other party’s conduct and the circumstances of the claimant. There is a broader appreciation of the potential problems that fixed costs may bring and the acknowledgement that the processes must change for the price to do the same.
There are areas which we at PIC believe are incorrect and/or misguided (such as using damages to calculate FRC despite a lack of correlation in the data supplied and the dampening of Part 36 implications in late acceptance cases). There is a need for more statistical and empirical evidence as with any report of this scale. It also remains to be seen how the Government will treat the report, particularly bearing in mind the current political climate. But it is hoped that they will take heed of this. It is a report that is some 8 years+ in the making and one that has been painstakingly prepared.
The message is clear, fixed costs is ready to be workable for a select group of cases but must be introduced with caution and monitored constantly. Any attempts at a swift introduction of FRC by Government departments for short term gain will result in irreparable damage to our legal system.
To contact him with any questions as to the impact of Lord Justice Jackson’s latest costs report or any other costs matter, please click here.