Implementing widespread fixed recoverable costs in civil claims has moved a lot closer with the Ministry of Justice issuing a short consultation, running to 6 June 2019, at the end of March.
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?
“It is an ideal time to look in detail at how the potential for ADR can be maximised.”
Sir Terence Etherton, Master of the Rolls, Chair of the Civil Justice Council
The Master of the Rolls was speaking on the launch of the Civil Justice Council Consultation ‘ADR and Civil Justice’ in October: the deliberate use of the word “maximised” confirms that, in the view of the senior Judiciary the question to be addressed is not whether or not ADR should be used but how much and how often. The Consultation (responses are due by 15 December) feeds in to a number of reforms, reviews and reports that consider the shape of the civil process in the early 21st Century. It would be easy to take a view that the Online Court (non-tortious claims under £25,000) can be ignored, that the LASPO review (announced for 2018) will be an “it’s working / no change” review and that the ADR review is only really likely to affect higher value cases (which often settle and mediate anyway).
“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.