“The next big thing we can do – and my department cares a great deal about costs across the board and disproportionate costs really impede to access to justice – is to try and extend fixed recoverable costs to as many areas of civil litigation as possible.”
Richard Heaton, Permanent Secretary Ministry of Justice
16 October 2017
It might be thought that re-patriating judicial authority from the European Court would be top of the Whitehall agenda and so it is interesting to note the evidence, cited above, of the Minisitry of Justice’s most senior civil servant before the Public Accounts Committee earlier this week. It seems clear that the MoJ retains its focus on a series of reforms and initiatives that will change the court process, the way in which users interact with the courts and in which lawyers’ fees are paid.
A little over a year ago Briggs LJ recommended the introduction of the “Online Court” that would free the court system and its users “from the tyranny of paper”. This reform is being piloted at the moment via amendments to the Civil Procedure Rules but ultimately will be underpinned by new legislation with a Courts Bill announced in the Queen’s Speech “to modernise the courts system”.
Various other schemes and projects are in hand. The Department of Health has picked up the issue of process and costs reform for lower value clinical negligence claims with a view to achieving a simplified procedure supported by a fixed costs regime. An agreement has been reached between claimant and defendant lawyers on a Noise Induced Hearing Loss scheme that was brokered through the Civil Justice Council.
Reform is backed by a substantial investment budget of £700m that is available to support the Court Reform Programme – this is not a programme of unsupported policy promises. It is backed by cash and focus (see the Permanent Secretary’s quote above) from the Ministry.
Amidst these various initiatives Rupert Jackson’s ‘Review of Civil Litigation Costs: Supplemental Report. Fixed Recoverable Costs’ was published on 31 July. The low key launch should not belie the fact that this is a significant reform proposing, firstly, the extension of the Fixed Recoverable Costs from injury claims to all Fast Track claims and, secondly, to create an Intermediate Track which again includes all claims and Fixed Recoverable Costs where the damages are £100,000 or less. The small print does confirm some exceptions but the vast majority of claims will be affected.
At BLM we believe that this is a significant reform and whilst there is a “been there, done that” schadenfreude for the injury practitioner the substantial extension to areas including professional indemnity, construction, property and many other areas of civil dispute means we shall be giving the reform our close attention. We have our Data Analytics team lined up and have a data set of nearly 10,000 cases which we can analyse. Our IT team is commissioned to prepare a Fixed Recoverable Costs Calculator. We will be considering the transitional provisions, claims spikes, claims inflation, Track-hopping, band hopping, expert witness inflation and the strategies that can be adopted to ensure that cases are resolved as quickly as appropriately possible. Consultations by government will follow and detailed review will be needed, not only in context of the report itself but in context of all the other activity affecting civil justice reform.
The devil will often rest in the detail but BLM will retain the holistic overview of the MoJ’s “Next Big Thing” and we will consider the latest round of civil justice reform as one of our RED campaigns. Watch this space!
Written by Terry Renouf, consultant at BLM