On 25 November, my colleague Terry Renouf posted a short blog that included a link to the Lord Chief Justice’s 2016 annual report. A few days earlier, on 22 November Lord Thomas, the current LCJ, had appeared before the Justice Committee to discuss his annual report with members of the Select Committee.
Annual reports are no longer the preserve of listed companies, charities, voluntary organisations and sports clubs – even the Lord Chief Justice (Lord Thomas) now produces one. His 2015 report was presented to Parliament on 13 January 2016. It runs to thirty three pages and contains a very strong statement of judicial support for extending fixed costs to all fast track cases and into lower value multi track claims. Lord Thomas also expressed a general concern about the cost of legal services in England and Wales – “our system of justice has become unaffordable to most” – and made specific remarks, quoted in full below, about controlling litigation costs and about fixed costs.
Control over the costs of civil litigation continued to be of the greatest importance. The Jackson review reforms have now bedded down. It appears that there is an improvement in costs management by judges and in costs behaviour by parties. There was sustained emphasis on the need for proportionality between the costs of a case in relation to the value of the claim. However, costs issues continued to be the subject of dispute between parties, and to generate litigation in their own right.
The judiciary has constantly pressed for the widespread adoption of fixed recoverable costs. This was one of the core recommendations in the Jackson review’s final report, but its application has thus far been restricted to a small number of areas of litigation (such as road traffic accidents). The judiciary strongly supports the application of fixed recoverable costs across the range of fast track cases, and in the lower reaches of the multi-track. This would help to ensure that litigation costs are reasonable, proportionate and that all parties can proceed with greater certainty. The judiciary hopes that the Government will give this proposal favourable consideration.
Court fees are another aspect of the cost of litigation. The judiciary made extensive submissions in relation to the succession of significant fee increases which have been proposed and largely implemented. Civil justice was the main focus for large increases in fees (particularly a fee based on 5% of the value of a claim, up to £10,000 at present, although the Government is consulting on
a cap of fees of “at least” £20,000). The impact of these fee increases is still being assessed by the Ministry of Justice but the judiciary, whilst accepting the decisions by Parliament to increase fees, remains deeply concerned about the effect on access to justice.
Implementing new areas and levels of fixed costs would be a matter for Government, following consultation and extensive data collection exercises, with detailed schemes needing to be drawn up in conjunction with the Civil Procedure Rule Committee. It is already known that proposals from Government for fixing costs in clinical negligence cases are expected fairly soon – in the first half of this year – and it remains more than likely that in the medium term the Ministry of Justice will take positive steps towards extending fixed costs in the way senior judiciary so very clearly supports.
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).