REPORT FROM PRESIDENT, BECKY MOYCE
On 5th April Nick Lee, Ben Holt and I attended LJ Jackson’s Cardiff roadshow regarding the proposed extension of the civil fixed recoverable costs regime which is currently under review. LJ Jackson opened the event by confirming that the focus of the review was to see if there was scope to extend the existing regime in a way that would promote access to justice at proportionate cost. An admirable sentiment albeit a tall order it would seem.
There followed presentations from Theodore Huckle QC, (door tenant at Apex Chambers) and Richard Buxton, (Richard Buxton lawyers) regarding whether the proposed extension of the fixed costs regime would work in public law practice areas. The consensus from the speakers was that it would not and the main points raised were:
- Further reforms in public law practice areas would damage Lord Justice Jackson’s imperative to promote access to justice
- Costs incurred at present in Judicial Review cases are not currently disproportionate to claim levels
- Fixed costs won’t support sustainable, specialist practices
- Implementation of the Aarhaus regime https://uk.practicallaw.thomsonreuters.com/5-503-7859?__lrTS=20170418231249976&transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1 is the best approach (in it’s pre-amended format) if change comes which looks at costs caps for each party as this has reduced arguments over costs
- Any changes should be incremental and trialled as a pilot
Following a short break we heard from District Judge Simon Middleton and Stephen Webber (Hugh James solicitors) about various key considerations of the fixed costs review, namely:
- Case management; with extensive case management procedures set out in CPR 44.3(5) but widely ignored the suggestion was that either we must ensure that these case management tools which already exist are used OR a new intermediate track with it’s own procedural rules and costs for those procedures could be introduced, (albeit complicated to achieve this for areas into which the fixed costs regime is extended).
- Exceptions/opt out; for example where the claim value (whether based on money or other factors) is not the determining factor considered by the court when looking at the question of proportionate costs. The question was left open as to whether exceptions should be allowed.
- Costs phases/trigger points; the current regime allows for costs for each phase of proceedings e.g. disclosure etc. It is already difficult to gauge at what point each phase starts or indeed what costs are proportionate or allowed if, for example only part of a phase has completed. The suggestion was that this is replaced with a chronological approach rather than phased.
- Part 36; Inevitably where any fixed costs regime exists the interplay with Part 36 is tricky. The question was asked whether the CPR should apply or not in the fixed fee cases or whether there should be an incentive system if offers are put that are not bettered or whether the fixed fee regime is all that matters.
The event was enlightening although ultimately no conclusions were reached, after all, this was not the purpose of the roadshow. Lord Justice Jackson appeared genuinely interested in practitioners views and keen to seek suggestions for how the fixed costs regime could be extended if indeed extension was appropriate. The discussions focussed on the impact for those practising in the areas of Judicial Review, Environmental and Planning Law, Personal Injury and Clinical Negligence. However, the impact of an extension of the fixed costs regime reaches far more widely and we should all take every opportunity afforded to us to express our views on this important issue, whether you support an extension or not.
If you want to read more please find Bristol Law Society’s submission to the recent consultation regarding Extending the Fixed Recoverable Costs regime Extending Fixed Recoverable Costs – Submission 30 1 17 and Nick Lee of Paragon Costs has written an article on the roadshow http://www.paragoncosts.com/site/blog/paragon-blog/fixed-fees-and-judicial-review