There are big changes planned ahead. The following is a summary of what Lord Justice Jackson has proposed. Any such changes however, if they are ever actually implemented, will be some years away. An incoming government is unlikely to see this as a priority.
"In some areas of civil litigation costs are disproportionate and impede access to justice. I therefore propose a coherent package of interlocking reforms, designed to control costs and promote access to justice."
This is Lord Justice Jackson's foreword to his eagerly-awaited Review of Civil Litigation Costs: Final Report, which was published today, 14 January 2010.
The review has been preceded by a decade of debate between stakeholder groups. Jackson LJ's final report is the culmination of 12 months' work in which he has gathered information and views from over 80 stakeholders, between whom there was considerable disagreement on all the major issues. It represents a "root and branch" review of civil litigation in England and Wales; the biggest undertaken since Lord Woolf's report, Access to Justice, in July 1996.
Top ten recommendations in the report
Many of the recommendations are bold and potentially far-reaching, such as:
- Ending the recoverability of success fees and insurance premiums under conditional fee agreements.
- Introducing one-way costs shifting in some types of claim.
- The abolition of the indemnity principle.
- Making contingency fee agreements available for contentious work.
- Repealing large parts of the Practice Direction on Pre-action Conduct.
- Replacing standard disclosure with a "menu" of disclosure options in some cases.
- Stronger use of judges' case management powers, including costs management.
- Increasing the damages awarded to a claimant where a defendant has failed to beat the claimant's Part 36 offer at trial.
- Extending electronic working to the High Court, county courts and district registries.
- The creation of a Costs Council, which will decide on guideline hourly rates and fast track fixed costs.
What next?
At the press conference at the Royal Courts of Justice on 14 January 2010, the Lord Chief Justice, Lord Judge, described Jackson LJ's report as a "remarkable analysis" which, if adopted as a whole, would result in a welcome improvement on the costs of litigation and access to justice in England and Wales. The Master of the Rolls, Lord Neuberger, expressed his support for the report and indicated that he would ensure it receives judicial support. He hoped that it would be adopted by the Ministry of Justice:
"The time for discussion and debate is over: it is now time for action."
However, the extent to which these recommendations will be brought into force remains to be seen. With a general election taking place later this year, the reformation of civil litigation procedure is unlikely to be high on the government's agenda, so it may be some time before any necessary changes to primary legislation (identified on page 472 of the report) are enacted (if at all). In addition, in a number of key areas, Jackson LJ indicates that further periods of consultation will be required.
In spite of this, the report is essential reading for all those involved in civil litigation and dispute resolution. It is an indication of possible changes to civil litigation procedure and there are matters that practitioners may wish to take into account now in the way they conduct proceedings.
PLC Dispute Resolution is preparing a detailed review of the entire report (which is over 500 pages long). We aim to publish this by the end of January 2010. In the meantime, Jackson LJ's major recommendations are summarised below. The final report should be read in conjunction with the preliminary report, published on 8 May 2009.
Please do give us call on 08000 815815 if you would like to learn more about the planned changes.
