Lord Justice Jackson has tabled plans for extending fixed recoverable costs. He conceded that fixing it would not be possible without reform to procedures.
Having previously suggested that fixed costs could be applied to all claims up to a value of £250,000, Jackson’s latest proposals account to a significant scaling back. His report proposed finishing the job of introducing a fixed grid of fixed recoverable costs for all fast-track cases, as well as a new ‘intermediate track’ for certain claims up to £100,000, which can be tried in three days or less with not more than two experts on each side. This ‘will make a real contribution to promoting access to justice’, he said.
A voluntary pilot of a ‘capped costs’ regime for business and property cases up to £250,000, for which procedures would follow those of the Intellectual Property Enterprise Court to some extent is also proposed. Jackson recommends new measures to limit recoverable costs in judicial review cases.
Jackson said, “In my view, it is now right to extend fixed recoverable costs above the fast track, but we must proceed with caution in order to protect access to justice”. He described the extension of fixed fees across the fast track as a ‘no brainer’, but said that above the £25,000 limit there was a ‘very substantial divergence of opinion’ on what should happen.
The view was echoed by the Bar Council. Andrew Langdon QC, Chairman of the Bar, said: “The review, in our view correctly, steers away from extending fixed recoverable costs up to £250,000. Encouragingly, there are also proposals in the report for a grid of recoverable fees which include ring-fencing fees for counsel or other specialist lawyers in more complex fast track cases and for intermediate track cases. These include trial advocacy fees.” However, Jackson said “I do not see how I can recommend any reform because it is necessary to protect one part of a profession, the profession exists to serve the public, not vice versa.”
Revealing the extent to which he had listened to lawyers, Jackson said he only ‘floated the idea’ of the intermediate track once his review had started and people had given their opinions.
The president of the Association of Personal Injury Lawyers, Brett Dixon, struck a note of caution over the proposed intermediate track. He said, “Thorough scrutiny of how all elements of Jackson’s recommendations would fit and work together is essential.” Law Society president Joe Egan also commented on this issue, “We hope that the process can be streamlined for cases affected by fixed costs before they’re introduced, in order to ensure that the costs will be manageable for solicitors and claims can still be brought”.
The review’s proposals have been welcomed as good news for solicitors and consumers. A ‘one size fits all’ approach for all cases, regardless of complexity, would have made many cases economically unfeasible, undermining the principle of justice delivering fairness for all. However, the government will want to see further reform and the control of lawyers’ fees in the lower value multitrack cases.