Dominic Regan reports from the front line
“The idea that justice has no price tag is unacceptable in the modern world. Our civil system must mend its ways and provide every court user, whoever they may be, with a dispute resolution system at a proportionate cost. This provision is my objective. I have sought to deliver it by proposing a structured package of integrated rules applicable to the conduct of proceedings, funding, and costs”—the Jackson Philosopy, as recounted to me by Sir Rupert himself during a fascinating interview last Thursday. In 40 minutes we cantered through the fast track, fixed costs, qualified one-way costs shifting—all transcribed and presented below.
Might it be that some reforms could be adopted later than others?
No. To target one feature of the landscape will not work. Given my wide terms of reference I was able to, and did, take a holistic look at the civil justice system as a whole. It is my hope that the reforms will be implemented next April in their entirety. It should not be forgotten that a number of my ideas have already been acted upon. We have seen the reversal of Carver v BAA by an amendment to Pt 36 and the introduction of the costs management pilot, which was a success and is now applied to every Mercantile and Construction Court in the jurisdiction. The provisional assessment of costs pilot in the north-east has been praised by Thompsons, a firm not utterly supportive of all of my reforms.
How important is it that we have fixed costs in fast–track litigation?
It is particularly important that we have fully fixed costs in place. This will ensure, as I explained in chapter 15 of my Final Report, that proportionality is imposed upon the parties and, of course, the costs of assessing costs will disappear since there will be no need for a detailed assessment. It is particularly important also so as to avoid expensive satellite litigation about proportionality. A new proportionality test is being introduced. Were costs to be left at large in the fast track then proportionality challenges would surely arise in cases which by their very nature are lower value. I am now convinced that we should move towards fixed disbursements too and the obvious first target is medical reports in injury cases.
What do you say to those who claim that fixed costs will be a charter for some to act unreasonably on the basis that the costs they pay out will be the same, regardless of the difficulties they throw up?
They are wrong. The safety net is an indemnity costs order for misbehaviour.
How extensive will costs management be in multi-track work which is outside a fixed costs regime?
I hope that the costs management procedure will be used in every jurisdiction. The judiciary are being trained on this now. The only exception is in the Commercial Court, where no one is seriously concerned about costs at all. This may, of course, change. It should be remembered that significant reforms to Commercial Court procedures, consistent with many of my current proposals, were introduced four years ago.
Where do you see the civil process changing dramatically?
Like it or not but we must move to an electronic rather than a paper system.The commencement of proceedings, payment of fees, the exchange and filing of documents, court bundles—all these need to be done electronically. No one welcomes change or upheaval in their working practices, but civil litigation can not go on forever with paper. I have not changed my opinion about the importance of electronic disclosure in appropriate cases.
Will qualified one–way costs shifting (QOCS) work?
Yes. It is a tried and tested model used in legal aid for more than half a century. I am strongly opposed to any attempt to dilute the scheme. I deliberated over it at great length before proposing it.
How will Pt 36 relate to QOCS?
I have proposed a new reward for a successful claimant who has
made a good Pt 36 offer. They can enhance their recovery with a 10% uplift on damages recovered, which will, of course, accrue to the claimant personally. Should a claimant get damages but fail to beat a Pt 36 offer from the defendant, then those damages will rightly form part of their means for the purposes of determining a costs liability. That can not be ignored.
What do you think of the recent joint proposal from the Law Society, the Motor Accident Solicitors Society (MASS), and the Association of Personal Injury Lawyers (APIL)suggesting that recoverability of additional liabilities continues but at a reduced cost?
This proposal is wrong in principle. No litigant should be allowed to increase its costs recovery by using one funding method rather than another. The additional burden imposed upon the paying party through the recoverability of additional liabilities is manifestly unfair and it must cease.
What should practitioners do to prepare for the big bang next April?
They should start to think about costs budgeting now and also look to embrace technology. The days of paper are numbered.
Do you regret suggesting any of your final proposals?
None.
see this week's issue, p326 or online http://www.newlawjournal.co.uk/nlj/content/jackson-stands-firm
Professor Dominic Regan, of City Law School & NLJ columnist, has assisted Lord Justice Jackson & HH Judge Simon Brown QC with costs reform.
E-mail: krug79@gmail.com. Website: www.profdominicregan.blogspot.com
