The second Jackson costs report was published on 31 July 2017 and made recommendations to expand fixed recoverable costs in civil litigation throughout the fast track and to introduce a separate regime of fixed costs for claims valued up to £100,000 in what would be called the intermediate track. These reforms have not yet happened. Why?
The Ministry of Justice welcomed the reforms and said it would consult on taking them forward, but there is need for some sequencing and co-ordination with its other ongoing activity.
For example, the five year review of the first set of Jackson’s costs recommendations (implemented in April 2013 via part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) has begun and the Ministry is taking views and evidence until 24 August 2018. A link to the on-line response form may be found at the top of page 2 of the review papers here.
While it is certainly sensible to take stock of recent changes before embarking on further reform, it is nevertheless disappointing that this five year review covers neither the non-statutory aspects of the reforms nor the 2013 introduction in July that year of fixed costs for fast track injury claims.
Progress with other discreet areas of fixed recoverable costs has been mixed. The MoJ moved very quickly (in Government terms) to bring holiday sickness claims within fixed costs from May this year. Its motivation was to deal with an outbreak of fraudulent claims arising from all-inclusive holidays, as this MoJ news story from April clearly explains: New curbs on bogus holiday sickness claims
Elsewhere, however, development of a scheme of fixed recoverable costs for lower value clinical negligence claims may have somewhat stalled despite the idea first being floated far earlier than for holiday claims. And models for fixed costs for noise-induced hearing claims, developed separately by the Civil Justice Council, also have yet to be implemented.
Another factor may well be the Ministry’s ongoing work on whiplash claims which is likely to be taking up significant amounts of time even with the recent postponement of the go-live date to April 2020.
Taking a broader view, the second wave of Jackson reforms really is ‘unfinished business’ from his first report. His July 2017 recommendations could make litigation costs more predictable and could be introduced largely by secondary legislation – an option which might be thought to make them attractive to a minority Government (which cannot on its own necessarily command the will of Parliament).
Little, however, looks likely to happen until the five year LASPO review has concluded, which might not be until late 2018 or the first half of 2019. Given that that period will be very busy for the Government as the UK gets ever-closer to leaving the EU at the end of March 2019, it seems realistic on this first anniversary of the second Jackson reforms to conclude that their implementation might not happen until another full year has passed.
Authored by Alistair Kinley, Director of Policy & Government Affairs