On 13 May 2015, Sir Rupert Jackson delivered a lecture entitled “Confronting Costs Management”. His speech and supporting paper (summarised below) offer a review of how the process is working and some ideas for improvement.
His new recommendations (said to be personal views) follow his discussions with key judges and an exercise by two judicial assistants to canvas the views of numerous practitioners and judges. This does not, therefore, feel like an isolated stocktake that might be headed for the long grass and indeed he referred to the exercise as a “mini-review” of costs management.
Not unsurprisingly, Sir Rupert voiced a strong defence of the regime of costs management. It is said to work well when done by competent practitioners in front of experienced judges. The “unwelcome shock” of the introduction in April 2013 of budgeting and costs management orders (CMOs) had not, it seems, lead to the realisation of some of the worst fears aired before their introduction. The following are among the key points he made.
- The front loading of the costs (of cost management) is slowly abating.
- Further and standardised judicial training is needed on the whole topic.
- There should be a standard form of CMO, which could be developed by the MoJ or the Rule Committee working in conjunction with the Judicial College.
- Filing of costs budgets should be standardised at 14 days before the CCMC (case and costs management conference), subject to judicial discretion to depart from this period where necessary.
- In the short term, all courts doing detailed assessments should adopt the SCCO’s approach of requiring the receiving party to lodge a summary bill in standard format (precedent H). This is pending a new form bill of costs.
- The problem of CMOs in clinical negligence cases was recognised. It is especially acute in London (1483 new clinical actions in 2014 compared to around 800 in 2009) where delays before CMCCs run to nine months, which is unacceptable. The short term solutions could include:
- “a one off release” (ie an exemption from costs management) of all clinical negligence cases with CMCCs listed from Oct 2105 to Jan 2016, with old-style CMCs instead to be scheduled ASAP, in order to clear the backlog by Sept 2015, and
- a proposal from Master Roberts that “very large clinical negligence cases should drop out of costs management” entirely on the basis that (a) costs were said to be proportionate anyway in these cases [something of an contentious assertion] and (b) that the CM exercise itself is hugely time-consuming.
- More generally, while there should be a firm presumption to costs manage – because when carried out by a competent judge it promotes financial certainty and proportionate costs – there should be a provision for judicial discretion not to do so where the court either lacks the resources or it would cause significant delay and disruption to other cases. [The second limb of this point has the feel of a Denton-style relaxation of an overly rigorous compliance-based approach.]
- Pre-action costs management is to be encouraged.
- Defendants in personal injury and clinical negligence actions should, even under the QOCS regime, file budgets. It was said that “As a result of QOCS defendant budgets are usually so low that they take little time to review”. [Perhaps another contentious assertion?]
Sir Rupert was also very critical of the cuts in civil legal aid implemented at the same time as most of his recommendations and of the recent introduction of so-called enhanced court fees. His view was that the latter should simply be disregarded by a court which is considering whether or not a claimant’s costs are proportionate. The full text of his lecture available online here.
Lord Dyson MR offered a short response and comment on the lecture. He took the view that the idea of a one-off release for clinical cases was worth serious consideration and that it was possible that costs management of large number of such claims in London might have to be abandoned. In any event, the issue was currently being examined by a sub-committee of the CPRC chaired by Coulson J. He added that the idea of a standard form of CMO also needed serious consideration.
Both senior judges firmly supported the extension of fixed costs across the fast track and into the lower reaches of the multi-track. Lord Dyson said that it was time for the MoJ, at very least, to accept this approach in principle.
About the Author
Alistair Kinley is BLM’s Director of Policy & Government Affairs.
Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.
He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).