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Archive for September, 2017

Proposal to further limit costs in the civil courts

The cost of litigation in the civil courts in England and Wales has long given cause for concern not least amongst the judiciary itself.  It was one of the matters addressed by Lord Woolf’s 1999 Reforms and the present Civil Procedure Rules incorporate fixed recoverable costs for fast track cases and costs budgeting for multi-track cases.  Nevertheless, “Transforming Our Justice System”, published in September 2016 by the Lord Chancellor, Lord Chief Justice and Senior President of the Tribunals, states “More needs to be done to control the costs of civil cases so they are proportionate to the case, and legal costs are more certain from the start.  Building on earlier reforms, we will look at options to extend fixed recoverable costs much more widely, so the costs of going to court will be clearer and more appropriate.”  The Rt Hon Lord Justice Jackson was asked to prepare a supplemental report to that presented by him re costs in 2010 and in July 2017, he proposed extending fixed recoverable costs to some multi-track cases.

Looking at cases issued in some of the new Business and Property Courts (see our Newsletter for August 2017), in which the claim is less than £250,000, LJ Jackson has suggested the adoption of an initial pilot scheme in which the total costs will be fixed at a maximum figure of £80,000 and the civil procedure adopted will be severely limited.  If the pilot scheme is successful, it will, potentially, be extended to all business and property cases claiming less than  £250,000.

This maximum costs cap will, of course, relate only to the recoverable costs payable to the successful party.  It will not prevent lawyers agreeing higher actual costs (incorporating their fees and disbursements paid, for instance, to counsel and any expert witnesses).  As LJ Jackson recognises, these costs are payable pursuant to a contract between a client and its lawyers although it will, he feels, incentivise lawyers to keep actual costs as low as possible or risk the client going to a cheaper competitor.  Whether it will or not waits to be seen but look out for an order of fixed costs in future civil cases.