At the 2023 Harbour Litigation Funding Annual Lecture, a robust defence of the new fixed recoverable costs regime took place from the deputy head of civil justice. The new system allows fixed recoverable costs for cases worth up to £100,000. He simultaneously acknowledged that it is not as simple as he would like.
Sir Colin Birss, a Lord Justice of Appeal, looked at issues coming out of the Civil Justice Council costs review he chaired earlier this year. He stated; “We know that claims are not being brought or defendants are throwing in the towel because the cost risk is too high. That is part of what the fixed recoverable costs are trying to address.
“We are trying as hard as we can, in the fixed recoverable costs that we have introduced, to try to make sure that the recoverable costs are broadly proportionate to the sum at stake.”
“This new system is designed to produce an answer that is dependent on only three parameters: the sum at stake, the track and the complexity band.”
Edward Bird, chief executive of litigation analytics company Solomonic, discussed the impact of artificial intelligence on litigation after the lecture. He argued that, in time, large language models like ChatGPT are “just going to be smarter than we are”.
Bird said law firms had the opportunity to build complete pictures of their clients by taking data from multiple sources and then producing “forecasts of what kind of services they will need over the next 18 to 36 months”.
Paul Worth, global co-head of litigation at Eversheds Sutherland, said he could see litigators using data first to improve costs budgeting.
“Show me the last 50 cases we did that were very similar to this”
Secondly, to produce more meaningful insights for marketing purposes, and thirdly to validate advice to clients.
Belinda Hollway, head of the class action firm Scott + Scott, proposed that smaller firms like hers may require data sharing through a third party with suitable confidentiality protections to ensure an adequate supply of it.
“If I see in my firm that a case costs roughly this much, but there is a fantastic product that tells me other firms seem to be doing the same kind of case more cheaply, or they seem to be settling 70% of these and we are only settling 60%, it would beg some real questions,” she said.