Tuesday, 21 November 2017

The devil in the detail

It is 9 years since Lord Justice Jackson first got the call from the Master of the Rolls to begin his Review of Civil Litigation Costs which made recommendations largely brought into law by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

While debates about the post-LASPO regime persist, few would question Jackson’s tenacity. This summer, his latest “supplemental” review, caps months of speculation on the prospect of fixed recoverable costs being extended to cover a much wider range of cases. The implications for the legal profession and for public access to the justice system will still be significant, but his latest recommendations represent a significant step back from earlier proposals.

In January 2016, Jackson urged ministers to fix costs for claims up to £250,000 but his latest review proposes only to fix costs for all claims up to £25,000. As always, the devil will be in the detail, but it is encouraging that Lord Jackson has acknowledged the complexity of clinical negligence cases, so that people who have been harmed by the public health system are not subsequently let down by the justice system.

His review recommends that a bespoke process is established for clinical negligence cases that fall beneath the £25,000 threshold and proposes that a joint Department of Health and Civil Justice Council working group be set up to gather views from both claimant and defendant solicitors. The outcome will be vital to the fairness of any fixed costs regime and to avoid tipping the scales in favour of defendants (most often NHS Resolution) who have already proved willing to play the system to avoid meeting the liabilities presented to them in court. Lord Jackson hasn’t entirely abandoned his aspiration to see fixed costs in much higher value cases, however.

His latest report also sets out plans for a pilot that would provide an optional, streamlined procedure for business and property cases up to £250,000, with fixed costs up to £80,000. Again, how this is implemented will determine both how fair and how successful any further expansion of the fixed costs regime may be, not least in the resources courts will have to deliver swift er and more cost-effective justice.

Fixed recoverable costs are, without doubt, here to stay and likely to be extended. They can offer benefits to all parties in streamlining and speeding up access to justice, but they could also reduce it, so any expansion must be carefully monitored.

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