Plea for restraint in setting court fees had ‘fallen on deaf ears’
In a speech given just 48 hours before his retirement, Jackson LJ, the architect of civil justice costs reforms introduced in April 2013 (known as ‘the Jackson reforms’), reviewed whether he had ‘achieved anything of lasting value’.
‘To spend ten years reforming the rules of procedure in an effort to reduce litigation costs is about as unglamorous as it gets,’ he told his audience at Cambridge Law Faculty. Nor did he ever expect it would make lawyers, who ‘particularly dislike anyone meddling with costs’, like him.
However, he concluded: ‘Many of the causes of excessive costs have been eliminated and significant improvements have been made… most of the reforms have worked well, but a few have not.’
Firmer enforcement of rules and court orders ‘now works well after a particularly bumpy start’, he said. Initially, courts ‘went over the top’ but they have been ‘striking the right balance’ since the Denton v White case.
The replacement of standard disclosure with a menu of possible disclosure orders, ‘has not worked well’, he said, mainly because people ‘take little notice’ of the new rule. Damages based agreements remain largely untried.
Incurred costs are difficult because they can’t constrain costs previously incurred, and primary legislation is necessary to resolve this, he said.
On calls for more guidance on the proportionality rule, he said he expected a ‘cluster of test cases’ at the Court of Appeal but this had not happened.
‘The profession is becoming impatient,’ he said.
‘The remedy lies in their own hands. The Court of Appeal can only decide the cases which come before it.’
Finally, Jackson LJ said he advocated against further legal aid cuts and was dismayed when ‘swingeing cutbacks’ were introduced on the same day as his reforms. Likewise, his plea for restraint in setting court fees had ‘fallen on deaf ears’.
Writing in this week’s NLJ, Edwin Coe senior partner and NLJ consultant editor David Greene asks whether Jackson LJ’s retirement marks ‘the end of the policy making judge’.
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