Mixed reactions as Lord Justice Jackson confirms scaling back from suggesting fixed costs for all claims up to £250,000

Lord Justice Jackson’s review on extending fixed recoverable costs (FRC) has been met with mixed reactions from the legal and medical professions after he confirmed that he would not be recommending that all claims up to £250,000 should be subject to FRC.

The review, which builds upon the reforms Jackson recommended in his original Review of Civil Litigation Costs in January 2010 has not gone as far as originally expected by many. However, it does propose introducing FRC for all fast-track cases and a new fixed cost intermediate track for some claims worth up to £100,000. It also proposes a pilot capped costs process for business and property cases up to £250,000.

As expected, Jackson has also recommended establishing a working party to examine fixing costs for clinical negligence claims worth up to £25,000. He said that the Department of Health and the Civil Justice Council should set up a working party with both claimant and defendant representatives to develop a bespoke process for handling claims up to £25,000.

Emma Hallinan, director of claims and legal at the Medical Protection Society (MPS), said that the MPS had hoped to see a bold recommendation with medical negligence cases up to the value of £250,000 included in a FRC regime.

“Disproportionate legal fees are still a significant issue for claims up to this value and the financial benefits to the NHS would be even greater if the threshold was higher,” she said.

“While disappointing, a £25,000 threshold would be a positive first step – the proposed working party should be established swiftly so the threshold and process for clinical negligence cases can be considered and implemented. Government must also now be swift and decisive in setting out its own response.”

Ian Davies, a partner, at international law firm Kennedys said that Jackson’s approach was to be commended.

“The decision to establish an Intermediate Track is very sensible, as is the detail given in the 4 FRC bands proposed,” he said.

“As always there will be claimants and defendants who will seek to establish where the exact boundaries lie within test litigation but the clarity provided thus far allows the Rules Committee the clear opportunity to draft a workable framework of rules for the Intermediate Track.”

David Cooper, a council member of the Association of Costs Lawyers (ACL) said that Jackson was also right to recognise that the current costs management regime was now largely working to the benefit of parties and access to justice alike.

“Costs Lawyers have put a lot of work into making the costs management regime work over the past four years,” he said.

“It is tricky to strike the balance between ensuring that litigation is not prohibitively expensive while also making it economic for lawyers, and Jackson LJ appears to have had that at the forefront of his mind is putting forward a balanced package of reform. The ACL looks forward to continuing its role in the reform process as it becomes reality.”

The president of the Association of Personal Injury Lawyers (APIL), Brett Dixon, struck a note of caution over the proposed intermediate track.

“[It] appears complex and that there is no suggestion of a pilot for personal injury, which could be dangerous,” he said

“Thorough scrutiny of how all elements of Sir Rupert’s recommendations would fit and work together is essential. The real issues will, of course, come out in the detail of implementation.

Meanwhile Stephen Hines, the vice president of the Forum of Insurance Lawyers (FOIL), hailed the recommended extension of fixed costs as an important step forward in the “continued modernisation of the civil justice process”.

“The streamlining of the civil process envisaged by Sir Rupert, together with other on-going procedural reforms, has the potential to significantly improve access to justice at proportionate cost,” he said.

Hines also said that FOIL supported the incremental approach in the report, which will see many cases worth up to £100,000 dealt with under a new streamlined process with fixed costs if acted upon by the Government.

“The proposals will allow time for the reforms to bed down and be refined before consideration is given to extending the regime further,” he added.

Mark Dugdale