The Jackson review continues apace. Jackson LJ published his preliminary report in May. At over 660 pages in length (not including appendices) there is no scrimping on detail. Indeed, the scope of the fact-finding exercise undertaken so far has brought to light the scale of the problems facing the civil litigation costs system. This article considers the link between the Jackson Review and the Woolf Review of 1998 and the tension between substantive justice and procedural fairness.
The remit of Jackson LJ’s review is ‘to carry out an independent review of the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportionate cost’.
Jackson LJ has yet to reach any firm conclusions as to how to effect this aim, but there are a number of options which he has given considerable thought to: the abolition of cost shifting in some types of litigation; a move to one-way fee shifting (as existed under legal aid); restricting disclosure and witness statements in ‘high value’ cases; replacing CFAs with contingency fees; expanding the current fixed costs system; and abolishing recovery of success fees / ATE premiums.
Clearly Jackson LJ is giving consideration to every level of litigation. From low value RTAs and personal injury matters to the high value commercial cases, nothing is beyond the scope of his report, and indeed he painstakingly considers the various arguments at each level, and draws upon various foreign jurisdictions for further guidance.
We have been here before. Lord Woolf, in proposing radical changes to the civil litigation system at large in 1998, sought to address the issue of rising, disproportionate costs. He recently expressed his views on the success of his reforms:
“One primary objective… has not been achieved: to reduce costs generally. Costs other than those that were fixed not only remain obstinately high but in many instances have risen and remain an impediment to justice.
The method by which lawyers are retained also needs to be radically changed. The CPR introduced the need for lawyers to keep their clients fully informed as to the estimated costs of the proceedings. The position may have improved, but not sufficiently…
I was relying on the client controlling the costs that proceedings were running up. They have not exercised sufficient control. The desire to win at all costs has meant that there is still no proper control. The maximum costs recoverable should be subject to a proportionate cap in most cases…It is clear from Lord Justice Jackson’s report that he is prepared to consider radical change and it is radical change that is still needed.” 1
In endorsing the ‘radical change’ which Jackson LJ is considering, Lord Woolf touched upon the question which lies at the heart of so many issues relating to costs: is the primary function of the courts to reach the correct conclusion, or to ensure that a level playing field exists for all parties? The answer appears to be the latter.
The overriding objective of the Civil Procedure Rules 1998 is to deal with cases justly. In other words, to ensure that the process is fair to all parties. Contrast this with the criminal system, where the overriding objective of the Criminal Procedure Rules includes the phrase ‘acquitting the innocent and convicting the guilty’. No such substantive justice is mentioned in the Civil Procedure Rules 1998.
Much of the responsibility for ensuring the level playing field lies with the courts and the exercise of their case management powers. This was a feature of the Woolf reforms more than a decade ago. In addition, the parties themselves currently have some degree of incentive to keep costs in check through the existing procedures on recovery and assessment of costs. Lord Woolf alludes to this in his comments above, whilst expressing the view that his reforms did not adequately deal with the rising costs of litigation.
And so, ten years on, Jackson LJ finds his report driven by the issue of access to justice, albeit at proportionate cost. But if proportionality of costs and procedural fairness are the order of the day, clients, lawyers and indeed all court users may ask themselves exactly what type of justice they are being given access to. Jackson LJ may, indeed likely will, propose further cost-saving measures, but at what price for the court user? We await his recommendations.