Cost-effective justice
Date: 29 January 2010
Authors: Michael Todd QC
Issue: Vol 160, Issue 7402
Categories: Opinion, Costs
To Jackson LJ access to justice is “the ability of a person to obtain legal advice and representation, and to secure the adjudication through the courts of their legal rights and obligations,” and that is to be achieved at proportionate cost.
Broadly, Jackson LJ’s final recommendations published earlier this month fall into two categories; those relating to funding, and those relating to case management. In civil litigation, legal aid is rarely available; and where it is available it is being reduced. Yet it is in relation to funding that Jackson LJ makes the most controversial of his recommendations; and it is about these recommendations that concerns have been expressed.
No-win no-fee
The recommendations concern the future of conditional fee agreements (CFAs). In future, success fees must be limited to 25% (rather than the 100% frequently negotiated), and those success fees and the cost of after the event (ATE) insurance will no longer be recoverable from the opposing party. Recoverability had meant that claimants had no interest in controlling costs. The “unfair” burden borne by the losing defendant was a price too high to pay for access to justice. Roundly attacked by lawyers and others, not involved in personal injury and clinical negligence work for claimants, there was little prospect that they would survive.
Uncertainty
The effect of such recommendations if implemented is uncertain. Lawyers who to date have been willing to undertake claims with less certainty of success, because of the success fees they have received on other cases, may start “cherry-picking” their cases. Others will “relocate”, retraining where necessary, to other areas of practice not dependent on CFAs for funding.
For impecunious claimants the position is different. Even if a claimant is protected by Jackson LJ’s proposals for qualified one-way costs shifting and increased damages, he would still be liable to his own lawyers for any success fee negotiated by them. And that presupposes that he is able to obtain advice and representation in a market with a reduced number of practitioners.
Alternative funding
Those dangers of a denial of access to justice will exist until alternative means of funding are found. Contingency fee arrangements, and contingency legal aid funds (CLAFs), the favoured alternatives, are insufficiently developed to provide the degree of protection presently afforded to the impecunious claimant. As with success fees, under contingency fee arrangements, the fee will have to be borne by the client out of any damages or costs award in his favour. In relation to CLAFs, Jackson LJ admits to not having been able to produce any viable model for a large scale CLAF.
In its response to Civil litigation costs review: Jackson LJ’s Preliminary Report, the Bar Council submitted that funding issues should be the subject of separate consultation. It is still not too late for such a consultation to be undertaken.
Fast track claims
Case and costs management is a central theme of Jackson LJ’s Final Report. For smaller claims, in the fast and multi-track, there are proposals for increased use of fixed fees, with a view to providing a greater degree of certainty and proportionality in relation to costs. Of course, a balance has to be struck between certainty and proportionality on the one hand and fair remuneration for the amount and complexity of work undertaken on the other. As with Jackson LJ’s funding recommendations, these fast track recommendations may also result in an unwillingness of some lawyers to do fast track claims.
In large commercial cases, and those in specialist areas of law, there is likely to be an increased use of docketing, ie the allocation of particular litigation or cases to a specific judge. While this practice already exists, hopefully, as a result of Jackson LJ’s recommendation that all judges should identify their particular expertise, more requests for docketing will be acceded to.
Jackson LJ also recommends that every interim hearing should be an occasion for effective case management, where “a judge of relevant expertise takes a grip on the case, identifies the issues and gives directions which are focused upon the early resolution of those issues.” As an adjunct to case management, Jackson LJ recommends costs training for judges, barristers and solicitors, in the assessment of costs, costs budgeting and costs management.
Costs management
Two important points emerge. First, the courts, and the lawyers who practise in them, should be more proactive in addressing the requirements of those who use their services. The results of the Long Trials Working Party in the Commercial Court are a testament to what can be achieved with consultation and co-operation between all court users and the Court Service itself.
Second, Jackson LJ has produced an array of interlocking reforms for case and costs management. Their successful implementation is dependent, at least in part, upon the availability of adequate funding by the Treasury, as additional burdens are placed on judges, and on the Judicial Studies Board. Whether that funding is made available remains to be seen.
Michael Todd QC chairman, Chancery Bar Association
Share this page
