Lord Justice Jackson is advocating a pilot of fixed recoverable costs in the mercantile court as part of his review of fixed recoverable costs in England and Wales.
Interviewed by Professor Dominic Regan for an exclusive NLJ webinar, Jackson LJ said he hoped to launch voluntary pilot schemes in cases of up to £250,000 in value in the mercantile courts in London and Manchester and in the other two specialist courts in Manchester.
“If the Rule Committee approves it the pilot will be modelled on the very successful system which operates in the Intellectual Property Enterprise Court. There will be a scale of costs for each stage of the case. The scale figure will be a cap rather than a fixed sum so that if that particular stage requires no or minimal work or less work than envisaged there's a lower sum. And then on top of the scale of costs for each element of the case there is an overall cap on recoverable costs.
“My proposal is that it is should be entirely voluntary. If claimants wish to issue in this fixed costs or capped costs list they can do so. If defendants object the case will come out. If defendants are content then, with the agreement of all parties, the litigation will proceed under this regime which will restrict recoverable costs and which will contain an expedited procedure in order to reduce the burden of work on the lawyers for each party.”
“The proposed pilot will be limited to cases up to £250,000 in value. If a case is above that, even if both parties want to go into the pilot they can't do so and I hope we will get, a sense of how much the market wants this and useful feedback about how the pilot rules are working."
Jackson LJ said his objective in undertaking the review was “to put forward a package of reforms which will promote access to justice and, so far as I properly can, control costs”.
He emphasised that he had four months left in which to clarify his thinking and prepare his report, which is due 31 July 2017.
The webinar, which includes: a review of how Jackson LJ has been conducting the review since January; the types and areas of litigation under review; incurred costs; and the impact of costs budgeting, can be downloaded here.
