Fixed Costs Part II

If this was a film sequel title you’d most definitely avoid watching it and choose, depending on your taste, either of the superhero blockbuster or  the rom-com showing on the adjacent screens.

Of course, the title has nothing at all to do with films but refers to a new review by Lord Justice Jackson into extending fixed recoverable costs in civil claims. It was announced on 11 November that he has been tasked by the most senior judges – the Lord Chief Justice and the Master of the Rolls – to conduct a review and make further recommendations by the end of July 2017.

Jackson himself has long been a proponent of fixed costs. In addition to the well-known recommendations in his 2009 Review of Civil Litigation Costs, he has more recently given lectures setting out arguments for extending fixed recoverable costs and published a detailed matrix of costs figures to promote further debate.

Our news piece from Friday afternoon offered some initial comment, including setting out the possibility that any new regime of extended fixed costs might apply from as early as April 2018. Thus the timing could well coincide with the post-implementation review of the April 2013 costs regime which was put in place as a consequence of Jackson’s 2009 review. The previous MoJ Minster Lord Faulks QC committed to doing this, stating last year that “there will be a Post Implementation Review of the LASPO Act Part 2 reforms between April 2016 and April 2018. The review will take place towards the end of that period.”

Jackson’s short text book “The Reform of Civil Litigation” was published only several weeks ago (September 2016) and further emphasises his views on fixed costs. He suggests in it that the first step is to determine what, for the selected value bands of claim, would be proportionate costs. His second step is to devise rules to adjust those costs figures to reflect complexity, conduct and wider factors (thus following the structure of the current rule on proportionality of costs at CPR 44.3(5)).

This new Jackson review seeks early submissions and in fact the period for written responses closes on 16 January. Given the Christmas and New Year break, this is going to come around very quickly, so we’d definitely recommend factoring in ASAP adequate time and resources for responding.

In focusing on fixed recoverable costs, this new Jackson review will build from and expand on a key strand of his 2009 report. It is not quite “Back to the Future”, although on the Law Society Gazette’s website one anonymous critic of fixed costs appeared to allude to that film in saying that “the only way to solve this is to invent a time machine, go back in time and prevent Mr & Mrs Jackson Senior from having sex.”

Moderately amusing and slightly risqué? Yes. But plausible? Of course not. Time travel is very much science fiction but fixed recoverable costs in civil litigation are the future and are perhaps barely two and a half years away.

About the Author

akAlistair 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).

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