Costs review prompts fresh concerns over access to justice

The appointment of Lord Justice Jackson to review the fixed recoverable costs regime, seven years after he recommended the change in his report on civil litigation procedures, has reawakened concerns over access to justice.

The move follows the Ministry of Justice’s commitment in its 'Transforming our Courts and Tribunals' paper to extend the fixed recoverable costs regime and has already alarmed parts of the profession, fearful that the review would lead to recommendations capping costs recovery further.

The Law Society's president, Robert Bourns, said Chancery Lane did not oppose the principle of fixed costs for straightforward, low value claims. The rule, he said, provided some certainty for both sides in litigation and avoided protracted disputes about the level of costs.

One particular concern, according to Bourns, related to earlier suggestions - including some by Jackson LJ - that costs should be fixed for all claims up to £250,000 – a tenfold increase on the current limit for many claims subject to a fixed cost regime.

‘Cases at this level of compensation include situations where people have been very seriously harmed and where the application of fixed costs would be totally inappropriate,’ he said. ‘It would also raise significant questions about people’s ability to access justice. Such a one size fits all approach for all cases, regardless of complexity, will simply make many cases economically unviable, undermining the principle of justice delivering fairness for all.’

His concerns were echoed by the Association of Costs Lawyers chairman, Iain Stark. The Weightmans partner commented that ‘whilst recognising the desire for wholesale reform, thereby providing certainty in the legal costs arena, this must be tempered by accepting that access to justice must be the bedrock of any consultation.’

Jackson LJ’s new mission will involve considering whether fixed recoverable costs - currently applicable primarily to road traffic accident claims up to £25,000 - should extend to other types and areas of litigation, and the value of claims.

‘I have been commissioned to undertake this review because it is integral to the overall package of reforms which I originally proposed,’ Jackson LJ said. ‘Chapter 16 of my final report recommended that serious consideration should be given to extending fixed recoverable costs to the lower reaches of the multi-track after the other reforms had bedded in.

‘Although the momentum is heavily for reform, the review will provide ample opportunity for comments and submissions on the form and scope that reform should take.’

Stakeholders are invited to submit written evidence by 16 January 2017, with a view to Lord Justice Jackson reporting to the Lord Chief Justice and the Master of the Rolls by 31 July 2017 and a government consultation after that.

Matthew Rogers is a reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress