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Jackson takes stock

In a keynote speech on 30 September 2014, Lord Jackson reminded us of his vision for the future.

Whilst the Rule Committee has introduced new fixed costs rules for fast track personal injury cases (amending CPR Part 45), effective from 1 April 2013, these fixed costs are lower than recommended by Jackson. Some have criticised the costs as being too low.

Lord Jackson's ambitions go well beyond the latest CPR amendments to fixed costs. His Final Report ("FR") recommended that costs in all fast track cases (not just injury) be fixed. Those recommendations are yet to be introduced. Jackson has expressed regret about this, although he acknowledges that the government is supportive of this recommendations in principle.

Jackson also made a separate recommendation for fixing the recoverable costs of medical reports in fast track Personal Injury cases. This recommendation was introduced in CPR amendments implemented on 1 October 2014 (insert link to other article).

Jackson reminded his audience that his FR recommended the fixing of costs in cases up to a value of £250,000. In particular, if a case settled pre issue then recoverable costs would be 10% of the settlement sum, and if the case settled post issue but pre allocation the percentage increases to 15%. The percentage then goes up in stages so that if the action proceeds to trial, recoverable costs are 40% of the judgement sum (or of the sum claimed, if the defendant is the victor). There would also be safeguards to ensure that unreasonable conduct can be penalised.

5 years have elapsed since the FR was published and Jackson proposed that now the time is right to take stock and develop a scheme for fixed costs in the lower levels of the multi track.

Such a scheme would be welcome as it would dispense with the need for costs management and costs budgeting in such cases. Litigants would then have certainty as to their costs exposure if they lose, or their future costs recovery if they win.

Mr Justice Foskett currently chairs the Costs Committee of the Civil Justice Council. Jackson argues that the CJC Costs Committee should research this issue and devise a scheme. Alternatively, a separate working party chaired by a judge should be set up.

The President of the Association of HM District Judges confirmed that there is overwhelming support for fixed costs both in the fast track and the lower value multi track cases. This would save time and costs with no dissenting voice within the judiciary.

He acknowledged there have been teething problems with costs management with criticism of front loading of costs. But Jackson remains of the view that as practitioners become more familiar with the process opposition will recede. The discipline focuses the minds of both lawyers and clients upon costs at the outset. However, Lord Jackson recognised that judges differ in their expertise in relation this new discipline.

Jackson also advocates an abandonment of the Court paper based system. It is recognised that shortages of experienced staff is hampering the delivery of justice to court users, despite recent investment by the government. If courts are not properly funded then this will drive up the costs of civil litigation which is opposite to what the government was trying to achieve when the reforms were introduced. Jackson urged the government to strengthen the resources as part of the overall reform programme.