Lord Justice Jackson has looked, listened & learnt during the first three months of his consultation, as Dominic Regan reports
I have stalked Sir Rupert Jackson for the last eight years. It was therefore a considerable surprise when he nobly caved in and agreed to let me interview him for a progress report on his fixed costs review.
Half-term report
His half-term report was both frank and enlightening. It was in January 2016 at the IPA Annual Lecture that this project was launched. His speech, “Fixed Costs—The Time Has Come”, advocated a universal fixed costs model that would impose a costs tariff across the board in all matters worth up to £250,000. It took the Ministry of Justice eight months to give the go-ahead. Broad terms of reference were set inviting Lord Justice Jackson to advise on how best to advance a structured costs regime.
Those terms of reference and important feedback from his slog around England and Wales to take soundings have plainly caused him to reconsider some of his early ideas. That is a healthy attitude; an open-minded review can only do good.
Key observations
A key observation made in our NLJ interview was that different categories of claim cannot be shoe-horned into a solitary costs matrix. While £250,000 is not a substantial sum in a mercantile dispute, it is a heady figure in an injury matter. “Balkanisation”, the co-existence of varying costs regimes, now appears more likely than not.
Sir Rupert also revealed that he was contemplating a voluntary limited pilot scheme in London and Manchester to begin as soon as possible. This would operate where all parties consented. It would need approval from the powers that be. It is difficult to see that anyone sensible would veto such a good idea.
Problem areas
Problems areas remain. While costs management has bedded down and is seen to be working the vexed issue of costs incurred remains. According to CPR 3.12 the purpose of budgeting is to regulate future activity and expenditure. Costs already incurred, which could be considerable, need to be reined in. After all, they are part of the overall bill. How best can these costs be controlled?
Jackson LJ is delighted that practitioners and judges now share his vision of costs management as an effective, proportionate method of regulating inter-party costs. The recent conversion of many has reduced the clamour for a fixed costs world. Indeed, the benefit of budgeting is that a bespoke approach is taken. This is to be contrasted with the rough and ready fixed costs model.
Another headache for Sir Rupert is what to do about the fees of counsel. When I discussed his 2016 proposals with him a year ago he explained that, advocacy fees apart, any fixed costs model would not permit the recovery of fees for drafting, conferences and the like. He was worried that costs would escalate if outsourced activity were to be added on. The worst scenario would involve solicitors relying heavily upon counsel and then keeping the fixed allowance, having done little work at all. The junior Bar is terrified—a term I use without exaggeration—that work will dry up. Jackson LJ is acutely aware of these concerns and the Bar has lobbied hard to win him over. Again, the problem is to find a viable solution.
Much attention has been directed at judicial review proceedings. One possibility here is to emulate CPR 41 which deals with environmental claims and limits the costs liability of a claimant. The final seminar in Cardiff this month was directed at that topic as was the London Law Society meeting in March.
Final report
While Sir Rupert alone will write the final report he did explain that he meets his team of 14 advisers on a monthly basis and he has the benefit of some modest actuarial help. The workload is prodigious: he remains fully active in the Court of Appeal, undertaking his day job. The report, to be delivered in July this year, will go first to government and then form the basis of a consultation paper.
My abiding impression of our discussion is that Jackson is most unlikely to adhere to the admittedly tentative conclusions voiced last year. He has looked, listened and learnt. By the time that reforms are implemented, as surely they will be, most likely in October 2018, Sir Rupert will be six months into his compulsory retirement from the bench. His final point to me was that his objective was to promote access to justice. Keeping costs under control is an unavoidable step to achieve that end.
Professor Dominic Regan, of City Law School & NLJ columnist, has advised Lord Justice Jackson on reform and continues to do so. He provides specialist in-house civil litigation training. (@krug79; profregan@icloud.com; www.profdominicregan.blogspot.com)
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