Lord Justice Jackson has today put forward his vision for extending fixed recoverable costs (FRC), but warned that it was not his job to protect the junior Bar or any other part of the profession in doing so.
Having initially talked about introducing FRCs for all cases worth up to £250,000, Sir Rupert said today that he has not gone that far because of improvements made in costs management.
As reported in full on our sister site Litigation Futures, he proposed “finishing the job” of introducing FRC for all fast-track cases, as well as a new fixed-cost ‘intermediate’ track for certain claims up to £100,000, and a voluntary pilot of a ‘capped costs’ regime for business and property cases up to £250,000, with streamlined procedures and capped recoverable costs up to £80,000.
“In my view it is now right to extend FRC above the fast track, but we must proceed with caution in order to protect access to justice,” he said.
He recognised that “controlling litigation costs (while ensuring proper remuneration for lawyers) is a vital part of promoting access to justice. If the costs are too high, people cannot afford lawyers. If the costs are too low, there will not be any lawyers doing the work”.
A particular issue came up around whether counsel’s fees should be ring fenced in his FRC regime, with those in favour arguing that it was necessary for the protection of the junior Bar, “which is very much in the public interest” and that counsel’s specialist input at an early stage was beneficial for the client and for the efficient conduct of the litigation.
But Sir Rupert said: “I do not see how I can recommend any reform because it is necessary to ‘protect’ one part of a profession. The professions exist to serve the public, not vice versa.
“It must be for the professions to organise themselves in whatever way is necessary to protect younger practitioners.
“The second argument, however, does have force in relation to the more complex fast track cases. Does that mean ring fencing for barristers alone? No. Very often barristers will do the ring-fenced work and receive the ring-fenced fee.
“But on occasions the proper person to do the work and receive the ring-fenced fee may be a solicitor, for example the intended trial advocate. On some occasions the proper person to do the ring-fenced work and receive the ring-fenced fee may be a fellow of the Chartered Institute of Legal Executives with appropriate expertise.”
At a press conference this morning to launch his report, Lord Justice Jackson described the extension of fixed fees across the fast track as a “no brainer”, but said that above the £25,000 limit there was a “very substantial divergence of opinion” on what should happen.
Jackson LJ said he “accepted the force” of the points made by the Law Society and Bar Council that special procedures were needed for cases above £25,000 where costs were fixed.
He said the new “intermediate track” for cases worth up to £100,000 would not be “appropriate for every case”, and the courts would only assign cases which were suitable, but he believed the inclusion of a new track “will make a real contribution to access to justice”.
Jackson LJ revealed that he had hoped to start the capped costs pilot for business and property cases worth up to £250,000 during the period of his review, but “the government decided to call the general election” and no pilots could be held during purdah.
However, he said the Civil Procedure Rule Committee had approved the court rules for the pilot and it was “likely to be quite popular”. He said he had been involved in informal talks with a university interested in monitoring the pilot.
Although the pilot would be voluntary, Jackson LJ said that in the future capped costs for case worth up to £250,000 should be available “not at the whim of the parties, but at the discretion of the court”.
Emphasising the extent to which he had listened to lawyers, Jackson LJ said he only “floated the idea” of the intermediate track once his review had started and people had given their opinions.
He added: “I have put forward proposals which I believe are workable.”