“Remuneration on a time basis rewards inefficiency”- says LJ Jackson!
At the IPA Annual Lecture on 28 January 2016, titled “Fixed Costs – The Time has Come”, LJ Jackson discussed the inevitability of fixed costs, the question that remains unanswered is – to what extent?
LJ Jackson said:
“I readily accept that the complexity of law and procedure contribute to high costs” and “there are other jurisdictions with complex laws and procedural rules where litigation costs are significantly lower than here”.
“Until recently recoverable CFA success fees and recoverable ATE premiums were a massive driver of high costs and inefficiency. The ending of this regime in April 2013 has cut out one layer of excessive costs. Costs management, when done properly by competent practitioners and judges, has done much to control the level of costs”.
Despite that LJ Jackson went on to say that: “serious consideration should be given to developing a general scheme for fixed costs across the lower reaches of the multi-track. We must therefore establish a fixed costs regime for all non-personal injury cases in the fast track”.
He further said:
“It would be illogical to fix the costs of clinical negligence claims in the multi-track (as the Government is now proposing) without sorting out the fast track at the same time”.
“We now have enough experience (including that gained from costs budgeting and the existing fixed costs regimes) to devise a coherent scheme of fixed costs for the whole of the fast track and for the lower reaches of the multi-track. The time for doing that has now come” “ Dispensing with costs management in the lower reaches of the multi-track. One advantage of this approach is that parties would no longer have to prepare, agree and/or argue about budgets in claims up to £250,000. This will save both time and costs”.
“What should happen next? First stage: I suggest that the Government (after consulting appropriately) should take the axial decision whether to have a totally fixed costs regime or – at least at this stage – merely to fix costs for the lower reaches of the multi-track. That is a political decision, which must take into account the views court users, practitioners, judges and all other stakeholders”.
Sue Fox is the Head of Costs Budgeting in the Costs and Litigation Funding department at Clarion Solicitors. You can contact her at firstname.lastname@example.org, or the Clarion Costs Team on 0113 336 3389.