In November 2008 Lord Justice Jackson, formerly head of the Technology and Construction Court (TCC), was appointed by the Master of the Rolls to review the costs of civil litigation and to make appropriate recommendations to allow access to justice at a proportionate cost. A preliminary report was published in May 2008 followed by a period of public consultation.
On 13 July 2009 we hosted Lord Justice Jackson at a forum with our clients in order for both us and our clients to give our views. We also submitted a formal response covering third party funding, the TCC and disclosure/e-disclosure.
On 14 January 2010 the final report was published and Lord Justice Jackson defined his proposals as providing “…a coherent package of interlocking reforms, designed to control costs and provide access to justice”.
Key proposals and recommendations
- Success fees and After The Event insurance premiums - these should no longer be recoverable from unsuccessful opponents.
- Pre action protocols - whilst the matter specific protocols do work the general practice direction needs to be substantially altered as it serves no useful purpose particularly in commercial cases.
- Disclosure - for “substantial” commercial cases a menu of options should be available to the judge to consider the most appropriate option(s) to match to the particular case.
- Case management - following feedback from court users, judges needed to be more robust as regards case management and this should continue to be promoted and enhanced by, so far as possible, allocating cases to judges who have relevant expertise and ensuring that a case remains with the same judge.
- Part 36 - the current rules do not go far enough in incentivising defendants to accept offers and the rules should be amended so that if the defendant fails to beat an offer the claimant’s recovery be enhanced by 10%.
- Third party funding - a voluntary code should be considered for all funders to subscribe to and future statutory regulation should be looked at.
- Contingency fees - both solicitors and counsel should be allowed to enter into these but costs should be recoverable against the other side on conventional bases and not with reference to the contingency fee. They should only be valid if the client has received independent legal advice.
- Court fees - only increase in line with inflation.
No specific timings have been suggested in the report. Formal amendments will need to be brought in though primary legislation and amendments to the Civil Procedure Rules themselves. This means the recommendations will remain recommendations for some time.
The feedback that Lord Justice Jackson received during the Costs Review indicated that there was a strong general level of satisfaction amongst court users with the current workings of the Commercial Court. On this basis, the only substantial proposals for commercial cases relate to making the disclosure process more flexible by having a menu of disclosure options. The amendment to the general pre action protocol is also to be welcomed as many Commercial Court users will have found that in practice this is too often used as a tool for delay by defendants.