The Law Society has responded to a speech by Lord Justice Jackson calling for the extension of fixed recoverable costs to apply to all claims valued up to £250,000.
Lord Justice Jackson recommended the extension of fixed costs to all civil claims, including personal injury cases up to a value of £250,000, irrespective of complexity.
Commenting on the recommendation, Law Society president Jonathan Smithers said:
‘Whilst we support the principle of fixed costs for lower value and less complex cases, the Law Society is extremely concerned at the proposal that costs should be fixed for all claims up to £250,000. This represents a tenfold increase on the current limit for many claims.
‘The application of fixed costs for highly complex cases is likely to be totally inappropriate and would raise significant questions about the ability of many people to access justice.
‘A single approach for all cases, regardless of complexity, will lead to many cases being economically unviable to pursue which undermines the principle of justice delivering fairness for all. We are also concerned by the suggestion that these proposals could be consulted on and implemented within a year as we believe this is unrealistic.
“While Lord Justice Jackson does not speak with the authority of the Government his views are clearly of huge interest. We support his call for a delay in the implementation of fixed costs in clinical negligence cases. Fixed fees are simply not appropriate in cases where a baby has died as a result of negligent care. A fixed costs scheme could curtail the ability for important cases to be brought, where the severity of the issue is not reflected in monetary terms but the purpose of the case is to reduce incidents of harm in the future by ensuring lessons are learned.’
Lord Justice Jackson set out his views in a speech delivered last night, six years after he published a fundamental review of the rules and principles governing the costs of civil litigation, aimed at promoting access to justice at proportionate cost.
The introduction of fixed recoverable costs for further civil work has been expected for some time and the Law Society agrees that they could be appropriate in low-value claims as they can provide greater certainty for both sides in litigation and they avoid protracted disputes about the level of costs. They can also reduce the problems caused by costs budgeting and assessment in civil litigation.
Jonathan Smithers continued: ‘The Society supports the principle of fixed costs, provided that a number of hurdles are met:
• The recoverable fixed costs should usually only apply to non complex claims where the issues are likely to be straightforward
• The costs must be fixed at a reasonable rate for the work done and to allow for the work to be carried out effectively and efficiently by properly regulated professionals such as solicitors
• There must be scope for exemptions and escapes for complex or unusual cases
• There must be rigorous empirical evidence and research undertaken to justify the initial setting of the rates as well as the level of thresholds
• The rates and thresholds must be regularly reviewed and increased by reference to appropriate indices
• Court procedures and court rules should be properly aligned with their introduction and
• Appropriate and efficient IT in the court system should be introduced to support the fair and effective delivery of any new fixed costs regime.’