Member Article

The Lord Justice Jackson?s Costs Review Report

With Watson Burton LLP Law Firm

Lord Justice Jackson is currently undertaking a review of the civil litigation costs system and his very extensive preliminary report (running to over 600 pages) was published on 8th May 2009. Practitioners were invited to respond to the report during the consultation period, which ended on 31st July 2009. Lord Justice Jackson is now due to publish his final report by 31st December 2009, at which point the Ministry of Justice will then decide whether to implement his recommendations.

The three big areas Lord Justice Jackson has considered for change are; Cost Shifting, Fixed Costs and Cost Management.

The principle of cost shifting allows a party to recover the costs they incurred in legal proceedings from another party to the proceedings. Lord Justice Jackson has considered whether in some cases cost shifting restricts, rather than promotes, access to justice. Although it appears that he does not completely wish to abolish the cost shifting rule, he does consider whether “one way” cost shifting might be an appropriate alternative. This would mean that, rather than “loser pays”, a successful Claimant will be able to recover their costs, whereas a successful Defendant will not be able to do so. In turn this would also mean that Claimants would no longer have any requirement for ATE insurance, the recoverability of which Lord Justice Jackson questions in any event.

The second area Lord Justice Jackson has considered is whether the current fixed costs regime under CPR 45 should be extended; possibly by introducing a cost regime like the one in Germany. Here costs are fixed on a sliding scale, depending on the value of the claim, which is generally fixed by the Courts.

The third big area of Lord Justice Jackson’s report relates to cost management and case management. He considers whether the Courts should have greater power to control costs and he suggests that the introduction of additional case management facilities, such as cost management orders, might be the way forward.

In respect of case management, Lord Justice Jackson proposes that an assessment of whether pre-action compliance actually costs more than it saves is required, and he also recommends that “docketing” be considered. This would mean that any case should be assigned to one judge from start to finish.

A further area considered by Lord Justice Jackson is in respect of evidence. Just two of the areas he would like to see reformed are disclosure, which can be extremely time-consuming and expensive, and witness statements, which are currently too long and expensive to produce.

In respect of expert evidence, Lord Justice Jackson has been considering how to reduce the costs of instructing experts. “Hot-tubbing” would appear to be one of the preferred ways forward. By “hot-tubbing” he means that evidence from experts in any particular discipline be heard concurrently.

Although the report appears to be addressing all the above issues particularly in respect of personal injury claims and other “heavy” litigation, it is clear that Lord Justice Jackson will recommend a number of changes to the civil litigation costs system overall. However, we will have to await his final report to see just how far-reaching his recommendations will be.

If you have any comments or questions about this article or any commercial litigation matters, please contact Sonja Driller of Watson Burton LLP at sonja.driller@watsonburton.com.

This was posted in Bdaily's Members' News section by Ruth Mitchell .