Lord Justice Jackson delivers his report on Fixed Recoverable Costs: 31 July 2017

I have just ‘hot-footed it’ from the Law Society in Chancery Lane, where, this morning, Lord Justice Jackson (‘LJJ’) presented his report on Fixed Recoverable Costs (entitled “Review of Civil Litigation Costs: Supplemental Report Fixed Recoverable Costs”). The eagerness of the Judiciary to deliver LJJ’s recommendations can perhaps be gauged by the fact that his report was released on-line two hours before his intended public release at 11.00 am.

Review of Civil Litigation Costs: Supplemental Report – Fixed Recoverable Costs

If you access/Google the above link, it should take you to LJJ’s report. A good overview can be gained by reading his ‘Executive summary’ on pages 9 and 10 (at least those are the page numbers of the printed copy I was given at the Law Society) and his ‘Conclusion and recommendations’ on pages 134 and 135.

For those of you with little time to spare, this is my ‘Thirty Second Summary’ of his recommendations, which now go to the Ministry of Justice for consideration and a possible public consultation:

  • All ‘Fast Track’ cases (claims up to £25,000 which can be tried in one day) to be subject to a ‘grid’ of Fixed Recoverable Costs (‘FRC’), i.e. costs which one party (usually the losing party) has to pay the other(s) if the court so orders (which it usually does).
  • A new ‘Intermediate Track’ for certain claims up to £100,000, which can be tried in three days or less, with no more than two expert witnesses appearing on each side. Streamlined procedures and a ‘grid’ of FRC to be applied.
  • The Department of Health and the Civil Justice Council to set up a working party to produce a bespoke process for clinical negligence claims up to £25,000.
  • A voluntary ‘pilot’ of ‘Capped Recoverable Costs’ (‘CRC’) (NB: capped, not fixed) for business and property cases up to £250,000, with streamlined procedures and CRC up to £80,000. LJJ’s report refers to the need for access to justice for SMEs (small and medium-sized businesses). (In response to my question in the Q&As after his presentation, LJJ said that the pilot would also cover claims by individuals against banks, businesses etc, if the defendant were willing to participate and agreed with my point that access to justice for individuals against business defendants is currently nigh impossible in claims up to £250,000 because of the risk of an adverse costs award if the case is lost). 
  • The extension of current protective costs rules in environmental cases to all judicial review claims, so as to limit recoverable costs in ‘JR’ claims.

LJJ comments in his report that “Controlling litigation costs (while ensuring proper remuneration for lawyers) is a vital part of promoting access to justice. If the costs are too high, people cannot afford lawyers. If the costs are too low, there will not be any lawyers doing the work”.

Jonathan Haydn-Williams, Goodman Derrick LLP