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Fixed recoverable costs: “the claimant perspective”

One of the big stories for dispute resolution lawyers this year is Jackson LJ’s review of the fixed recoverable costs regime. Jackson LJ is due to report back to the Lord Chief Justice and the Master of the Rolls by 31 July 2017, so there will be an intense programme of work.

I was delighted to facilitate one of the first consultation meetings, which took place on 10 January 2017: a session focused on understanding “the claimant perspective”.

When briefing me on the requirements, Jackson LJ emphasised that he was very keen to hear direct from claimants themselves, not just their lawyers.

The specific “target” audience was claimants who had brought claims (not personal injury or clinical negligence) in the fast-track or in the multi-track, up to about £250,000. The idea was for lawyers to attend with one or two clients.

The event was promoted in the Practical Law Dispute Resolution weekly email (three times), mentioned to ALPS (the Association of Litigation Professional Support Lawyers), CLAN (the Commercial Litigation Association) and LexisNexis, who kindly agreed to promote it to their subscribers. It was also featured twice in the Law Society Professional Update that goes to about 170,000 recipients.

For me, perhaps the most fascinating aspect was the sheer range of claimants and claims represented. Attendees included individual claimants with commercial claims, claims against the police or housing claims, plus in-house counsel from large corporates (who bring and defend and wide variety of claims), and representatives of the Law Society and the Civil Courts Users’ Association.

I referred to this, in my brief intro for the event:

“The focus this evening is on the claimant perspective.

That might sound simple enough but, of course, there are a whole range of types of claim and types of claimant – as reflected in the audience tonight.

Attendees this evening include a wide cross-section of solicitors and claimants, ranging from a fairly large group of members of the Police Action Lawyers Group (PALG) who have claims often involving complex human rights issues or judicial review, insurers, people with housing and property or contractual claims, through to corporate in-house counsel who deal with a variety of claims.

Some of the claimants represented here tonight are likely only ever to have one or two claims going through the courts, some will have several. Others will have many – and will also see claims both as a claimant and as a defendant.

Some of the claims will have a relatively high financial value, whilst others may be more ‘principle-based’. Some will be of a value that is a huge sum for an individual, but relatively low value for a corporate entity.

That range of perspectives, and values, goes to demonstrate just how difficult Lord Justice Jackson’s task will be. We all know how difficult it is to find solutions that please everyone. No-one likes the idea of winning a claim, but that becoming a pyrrhic victory, as a lot of costs have to come out of the damages. Equally, though, no-one likes the idea of people being scared even to commence proceedings due to the fear factor of what the other side’s costs might be if the claim fails. Finding the right balance will not be easy.

At the heart of this review, is the desire to provide access to justice at proportionate cost for as many people as is possible, without having rules so complex that they are difficult to understand.”

Rachel Rothwell prepared a useful summary of the views expressed at the meeting. A précis summarising the key points will also be included in Jackson LJ’s report.

For me, some general points worth highlighting are:

  • The huge range of perspectives. Claimants come in all shapes and sizes, so finding an approach that works for all without being hugely complex, will be challenging. Of course, the same will be true of defendants.
  • The power of representative groups. It was impressive to see how members of PALG, for example, actively contributed to the meeting, and how their clients generously gave up their personal time to explain the sorts of issues that arise in the context of actions against the police.
  • The need for court users to assist Jackson LJ. The review of the fixed recoverable costs regime is a hugely challenging task. It is imperative that court users make their views known: whether by attending consultation meetings or submitting views in writing. Jackson LJ is keen to receive “evidence-based submissions”: for example, providing examples of the costs of bringing particular types of claim. It is this type of evidence that is likely to influence Lord Justice Jackson’s thinking, as he forms views over the next six months.

On 20 January 2017, Jackson LJ announced that the deadline for written submissions to his review of fixed recoverable costs has been extended to 30 January 2017. Submissions can be sent to: fixed.costs@judiciary.gsi.gov.uk. He emphasised that there will be no further extensions. Time may be short, but do take advantage of this opportunity. Don’t worry about having to craft the “perfect” document. If you have important points to make that can be summarised in a few bullet-points and illustrated through some anonymised data, please do share that information.

Practical Law Dispute Resolution Beverley Barton

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