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Solicitors and barristers cautious over Lord Justice Jackson’s fixed costs recommendations

Fixed costs for complex cases deemed 'totally inappropriate' and may prevent legitimate claims being pursued, say the Law Society and Bar Council

1 February 2016

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'Extremely concerning' proposals to fixed the costs in all civil claims at £250,000 risk access to justice and tilting the courts further in favour of government and big business.

In his speech on 28 January to the Insolvency Practitioners' Association, Lord Justice Jackson revealed his recommendations to extend fixed costs to all civil claims, including personal injury cases up to a value of £250,000, irrespective of complexity.

Speaking in Westminster, the judge said it was time to extend the fees regime but called on the government to pause plans for fixed fees for clinical negligence.

The Court of Appeal judge admitted his recommendations may not be warmly welcomed by solicitors, but argued that the reforms would have a positive impact on costs management.

'My impression is that the profession is now more willing to accept fixed costs than it was in the past. I do accept if we have a regime of fixed costs there will be winners and losers,' he said.

'That is a price worth paying in order to obtain the benefits of certainty, predictability, and proportionality. I have come across cases which have flown out of control where the issue is of modest value.'

Responding to Jackson's speech, the Bar Council's chair, Chantal-Aimée Doerries QC, observed that implementing such a scheme will require careful thought to avoid unintended consequences.

'Large corporations and governments may well be willing to spend large sums of money - beyond what is recoverable - on legal disputes with individuals or smaller corporations whose costs are fixed at a much lower rate.

'Instead of levelling the playing field, this proposal could tilt it further in favour of big business and the state,' she said.

Doerries explained there was also a risk that access to justice could be restricted as using the value of a case to determine costs would not be appropriate in all circumstances.

'A low value but legally complex case may demand a great deal more work than the allocated cost band will allow,' she said. 'This means lawyers may not take on complicated, low value cases, thus preventing legitimate claims from being pursued.'

'Lord Justice Jackson's acknowledgement of the need to build in a system of regular reviews or index-linking to such a scheme is eminently sensible,' added Doerries. 'This is a feature which has been notably absent from previous schemes.

'It is in the interests of justice to ensure that costs in legitimate, complex cases are not capped at such a level that they become unviable to pursue with the support of properly qualified and experienced legal professionals.'

While supporting the principle of fixed costs for low value and less complex cases, the Law Society said it was 'extremely concerned' at the proposal as it would represent a tenfold increase on the current limit of many claims.

Commenting on the recommendations, the Law Society's president, Jonathan Smithers, said: '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.'

Smithers said that a single approach for all cases, regardless of complexity, would lead to many cases being economically unviable to pursue and undermine the principle of justice 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,' he added.

'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,' Smithers continued.

'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.'

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