In a specially written feature article for Legal Life, Paul Robinson of The John M. Hayes Partnership, a Bristol firm of Law Costs Draftsmen and Costs Lawyers, looks at the implications of the Jackson Report and its likely implementation.
As many readers will be aware Lord Justice Jackson’s report was published in January 2010, it made a staggering 109 proposals which would bring about the most widespread and dramatic changes to our legal system since the introduction of the Civil Procedures Rules in April 1999. Given your likely familiarity with these proposals I don’t intend to repeat them here, I do, however, think you may find some interest in a guide to the progress of the implementation of these proposals.
The Legal Aid, Sentencing and Punishment of Offenders Bill was introduced to Parliament on 21 June 2011 and proposes major legal aid reforms which limit the scope of public funding in civil cases. This bill also includes a number of Jackson’s recommendations: in particular the, almost revolutionary, proposal that success fees and ATE premiums would no longer be recoverable from the paying party, and would instead be taken from the client’s damages, albeit capped at 25%. The bill is currently being considered by Committees within the House of Lords and the bill is scheduled to come into force in October 2012, although the government has put back the implementation of the legal aid aspects of the bill six months to April 2013.
A second raft of Jackson’s proposed changes are included within the Ministry of Justice’s Consultation paper; Solving Disputes in the County Courts. They include proposals to:
- Raise the maximum value for claims in the small claims track process to £15,000;
- Increase the cap for claims in the low-value road traffic accident scheme to £25/50,000 and increase its scope to include employers’ liability and public liability personal injury claims.
- Introduce fixed recoverable costs for fast-track personal injury claims
- Increase the minimum value of high court claims from £25,000 to £100,000;
The Civil Justice Council produced a response to this paper in June 2011 – it has agreed to these changes in principle but has, surprisingly and encouragingly, stated a note of caution that these changes should not proceed without further investigations. They noted that most cases in excess of £10,000.00 damages would not fit the perspective management of the RTA scheme and have suggested considerable analysis would be required to set “fair” amounts for fixed fees in fast track matters. The CJC disputed an increase to the fast track claim limit but did agree to an increase in the small claims track limit, albeit suggesting £10,000.00 instead of the proposed £15,000.00. The Government’s eagerly anticipated response to this is still overdue.
The 10% increase in general damages has not been included in any draft bill or proposals, this is disappointing given it was one of Jackson’s main proposals; however, it appears the Judiciary have been tasked with implementing this.
Many of Jackson’s recommendations will not require primary legislation to be enacted, for instance, the Civil Procedure Rule Committee have already agreed to a number of changes relating to case management; they have confirmed the courts will be granted greater powers to impose sanctions and will be able to contact the parties from time to time in order to monitor compliance with directions. The Committee have confirmed that these changes will not come into force until the Legal Aid, Sentencing and Punishment of Offenders Bill is enacted.
The Civil Justice Council have set up a CJC working party to consider whether secondary legislation can also be used to enact three other key proposals; qualified one way costs shifting, additional sanctions/rewards for part 36 offers and the proposed changes to the proportionality tests. The workshop discussed the possibility of part 36 sanctions with significantly enhanced interest on costs, approximately 25% above the base rates. The workshop also discussed Qualified One Way Costs Shifting, whereby, Claimants would not be liable for Defendants costs, except, perhaps, for minimum payments which would deter speculative claims. In respect of proportionality, Jackson’s suggestion that proportionality become the dominant test over reasonableness and necessity has already been reflected by the recent Motto Judgement (Motto & Ors v Trafigura Ltd & Anor  EWCA).
Jackson also recommended that the format and assessment of costs themselves be altered, and to that end, the Association of Costs Lawyers Costs Group has made its own proposals on a new way of presenting Solicitors’ costs; an electronic format broken down into phases, tasks and activities with the bill, points of dispute and replies all rolled into one.
A number of pilot schemes have been introduced around the country to test some of Jackson’s recommendations. In Leeds a case docketing system, whereby Judicial continuity is encouraged, has been introduced. Meanwhile, the London, Manchester and Mercantile Courts pilot schemes require Solicitors to submit detailed estimates of future base costs at regular conjunctures to test Jackson’s cost budgeting recommendations. In Leeds, Scarborough and York County Courts the courts are undertaking paper only detailed assessments on bills where base costs are below £25,000.00.
Given the need for primary legislation and regulation, the introduction of the Jackson proposals will not be a quick process, and it is likely to be late 2012 or early 2013 before some of the reforms will come into force. If, like me, you are not a fan of change then I fear you are shortly about to be a part of some very radical changes indeed.
We hope you have found this summary of the implementation of the Jackson proposals useful. Should you have any queries please don’t hesitate to contact us. The John M Hayes Partnership is a long established nationwide company with 11 Offices; we undertake work in all costs matters and are taking steps to ensure we remain up-to-date and prepared for the forthcoming changes to both inter partes and publicly funded matters. We return all files by DX Gold and provide a free courier service to Solicitors in the Bristol area.
The John M Hayes Partnership
0117 929 4000
DX: 122812 Bristol Great George Street