Jackson, can we fix it… Jackson: yes, yes we can!

The supplementary report of Lord Justice Jackson was unveiled last week; building on the 2013 civil litigation reforms. The proposals now recommend that fixed recoverable costs should apply to claims valued up to £25,000; demonstrating a major withdrawal from the initial ‘one size fits all’ proposal of fixed costs for all claims up to £250,000. All “fast track” cases will be subject to a grid of fixed recoverable costs. It is proposed that these cases will be split into four bands of complexity with band 1 being the least complex and band 4 being the most complex.

In addition to fixed costs up to £25,000, he has also suggested that an “intermediate track” for monetary relief cases up to a value of £100,000 be introduced to deal with cases of “modest complexity”. This will only include cases where there are: not more than two experts on each side; trial to be completed within 3 days; and no wider factors, such as reputation or public importance, which will make the claim inappropriate for this track. Excluded from this track will be cases involving: mesothelioma and other asbestos related lung diseases; complex PI and professional negligence claims; clinical negligence claims (unless breach of duty and causation have been admitted at an early stage); actions against the police; child sexual abuse claims etc. (the list is not exhaustive and no doubt practitioners will attempt to exclude cases for numerous reasons). However, additional discretion to allocate any case not satisfying the criteria set out in paragraph 3.2 of Jackson LJ’s supplementary report will be afforded to the Court where such allocation is necessary in order to promote access to justice.

Jackson LJ has also proposed that the current protective costs rules in environmental cases be extended to include all judicial review claims. However, the current protective costs rules, amended on 28th February 2017 (CPR 45.41 to 45.45), now provide the court with the discretion to vary the costs caps in specified circumstances, which appears to go against everything Jackson LJ is trying to push forward. A judicial review by three environmental charities, in respect of the new rules, has been permitted and has been fast tracked by the High Court (mentioned in our previous blog – Environmental costs regime challenge is fast-tracked.); the decision is awaited. Jackson LJ, in his report, commented that “citizens must be able to challenge the executive without facing crushing costs liabilities if they lose”…it remains to be seen if this sentiment will be upheld on Judicial review.

He also recommends a pilot of capped recoverable costs for business and property cases valued up to £250,000 with costs to be capped at £80,000. Parties opting in can expect cases to be heard no more than eight months after the CMC and will last no longer than two days. The general rule is that no disclosure will be ordered and expert evidence will not be permitted. Entrance to the scheme will be consensual and permission will be required for a case to leave the capped costs list. One wonders if they will be queueing out the door to enrol…

Costs only proceedings will also be subject to a cap. Recommendations for proceedings brought under CPR part 8 include: fixed recoverable costs of £300 for a claimant and £150 for a defendant.

How and when these proposals will be implemented remains to be seen, however, if previous years have taught us anything it is that these proposals, no doubt, will become a reality.