In 2010 Jackson LJ presented his much publicised "Review of Civil Litigation Costs: Final Report". It was his aim to reform the draconian 'winner pays all' approach to costs in fast track personal injury cases which he feels is a "recipe for runaway costs" in order to make way for a fairer and pre-emptive approach whereby costs would be controlled from the outset. It was hoped that this, in turn, would promote proportionality and access to justice.
The upshot of Jackson LJ's proposals was the introduction of fixed recoverable costs in some personal injury cases up to the value of £25,000 and costs budgeting in all cases above £25,000, with the latter being controlled by the court.
Now that the 2010 reforms have become firmly established, the time has come for the reforms to grow and develop and accordingly Jackson LJ has set out the next stage in costs management in his "Review of Civil Litigation Costs: Supplemental Report fixed Recoverable Costs" dated July 2017.
In the Supplemental Report, Jackson LJ makes two key proposals:
1. extending the fixed recoverable costs regime (FRC) to cover all types of cases in the fast track - including holiday sickness and noise induced hearing loss claims, and non-personal injury claims such as defended debt cases, tracked possession claims, housing disrepair and other money claims.
2. imposing a fixed recoverable costs regime on cases with values in excess of £25,000.
Initially, it was thought that the further reforms would see fixed costs applying to all cases with a value of up to £250,000. However, following extensive consultation, Jackson LJ has reined in his proposals to reflect the fact that a large proportion of the legal profession consider that multi track cases are "so varied in character that they do not lend themselves to any rigid costs matrix".
The consultation has led Jackson LJ to recommend the introduction of a new "intermediate track" which will encompass claims between £25,000 and £100,000. The proposed procedure for these cases will include a trial of no more than three days, with no more than two expert witnesses giving oral evidence on each side.
Within the "intermediate track", Jackson LJ proposes a streamlined procedure and a grid system of FRC which includes four 'complexity bands' to reflect the amount of work. The costs recoverable will naturally be scaled accordingly.
Unsurprisingly, mesothelioma and other asbestos related lung disease claims are to be excluded from the intermediate track, as are clinical negligence claims, multi-party cases, actions against the police, child sex abuse claims and intellectual property cases. Furthermore, a case allocated to the intermediate track initially can potentially be taken out of it if the nature of the case changes fundamentally.
Jackson LJ has also made it clear that any reforms that he proposes must fit with other civil justice initiatives, including the whiplash reforms and the increase in small claims personal injuries limit.
It remains unclear when a consultation on the reforms will begin, albeit the suggestion is that implementation may not take place until October 2019, a period of 12 months after it was first expected.
If Jackson LJ's most recent proposals are accepted, he recommends a review after four years, at which point consideration should be given to extending the intermediate track to include monetary claims above £100,000 and claims for non-monetary relief. However Jackson LJ is expected to retire in March 2018 and it is not yet known who will take over his reform responsibilities. It remains to be seen what will come of his most recent proposals and whether his successor will drive the civil cost reforms forward with the same zest and ambition witnessed under Jackson LJ's tenure.