Judge describes “striking omission” of exclusion of ELD claims from fast track fixed costs
The best way to satisfy requests for clarity on costs is to create a fixed costs regime, Lord Justice Jackson has said in a speech that reiterated his support for fixed costs.
In a lecture at the Westminster Legal Policy Forum this week, The future for civil litigation and the fixed costs regime, Jackson LJ said there had been “much debate” about whether a Practice Direction (PD) should give supplementary guidance to the five general rules on proportionate costs (r 44 in the Civil Procedure Review).
However, he noted that Lord Neuberger had cautioned against this approach. Jackson LJ said: “Unfortunately, any attempt to draft a PD which supplements those five general rules with another set of general rules, albeit more specifically focused, is doomed to fail.” Instead, “the best way to satisfy the requests for clarification is to convert the five identified factors into hard figures: in other words, to create a fixed costs regime”.
NLJ columnist, Professor Dominic Regan, City Law School, says: “It all turns upon the interpretation of ‘the lower reaches’ of multi-track. The fixed costs solution will shed no light upon proportionality in cases worth more than the fixed costs limit.”
Jackson LJ also described the non-inclusion of employers’ liability disease (ELD) claims from fast track fixed costs as a “striking omission”.
“People sometimes ask how this omission came about and whether it arose because ELD cases are unsuitable for fixed costs,” he said.
“The answer is that ELD cases are not unsuitable for fixed costs.”
He said he prepared grids of fixed costs for fast-track road traffic accident, employers’ liability and public liability claims, with the help of others, during his review into civil litigation costs. However, the work was deemed “political” during the run-up to the 2010 General Election and had to be suspended. The proposals concerning fixed costs were not subsequently taken up by the coalition government, and so ELD cases were omitted due to “historical accident”. However, the Civil Justice Council is currently working on a grid of fixed recoverable costs for noise-induced hearing loss cases, which make up the bulk of ELD claims.
