Jackson’s New Costs Proposals are Balanced but Seismic

Posted by Michelle Barron on 31st July, 2017 in Opinion and categorised in .

Lord Justice Jackson has today announced the result of his long-awaited review of Fixed Recoverable Costs.

Supping from a poisoned chalice he has been cradling for many years now, LJ Jackson has managed to produce a carefully balanced report. Make no mistake, his proposals represent a seismic shift in legal costs – with key proposals including the widely predicted (by me amongst others) introduction of an intermediate track covering cases between £25k and £100k, combined with capped costs of £80k in business and property cases up to £250k.

The supplemental report to LJ Jackson’s final report on his Review of Civil Litigation Costs, summarises the proposals:

“In this report, I recommend a grid of FRC for all fast track cases, as set out in chapter 5.  Above the fast track, I recommend 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 giving oral evidence on each side.  The intermediate track will have streamlined procedures and a grid of FRC, as set out in chapter 7.”

The report singles out clinical negligence costs and LJ Jackson recommends that the Department of Health and the Civil Justice Council should set up a working party, including with both claimant and defendant representatives, to put together a clinical negligence specific process for handling claims up to £25,000.  This should include a grid of FRC.  This scheme will capture most clinical negligence claims.  LJ Jackson suggests this should be straightforward if the stakeholders come together and gives noise induced hearing loss claims as an example of how it can work. The appointment of a working party to address this vexed question makes good sense.

The proposed costs capping regime for business and property cases up to £250,000, with costs capped at £80,000, will go some way to easing the concerns of SME’s, voiced by the Federation of Small Business amongst others.

On Judicial Review cases, the report concludes that if qualified one way costs shifting (QOCS) is not to apply, the Aarhus Rules should be adapted and extended to all judicial review claims, with costs management being available at the discretion of the judge, in heavy claims of this type.

For all the balance of LJ Jackson’s proposals, let’s not beat around the bush, these are significant changes. They will bring more process changes, more amendments to the rules and practice directions, more opportunities for the ingenious to exploit the new provisions, to sidestep the unwanted and embrace the desirable, depending on which side of the fence you operate from. All eyes will now be on the Civil Procedure Rule Committee, who will need to implement these with a steely eye on past experiences and practical considerations. Those in everyday practice must continue to be consulted to ensure potential wrinkles are ironed out and expensive satellite litigation is minimised – although some is inevitable as weaknesses in drafting are stress tested through the courts.

This article was written by Richard Allen who brings 30 years of unique commercial experience to Burcher Jennings. He was one of the first professionals to achieve Costs Lawyer status, and is one of a select group of Costs Lawyers to have made partner in a solicitor’s practice. Richard is Practice Manager for the Cambridge office.