Jackson urges multi-track fixed costs and court system investment

In a recent keynote speech at the Inaugural Conference of the Costs Law Reports, Lord Justice Jackson, referencing back to the conclusions in his Final Report* applauded the success of fixed costs in PI fast track claims and IP claims in the IPEC, urged their extension to non-PI fast track claims and lower regions of the multi-track and cried out for further funding to improve the court system, particularly a quicker roll out of electronic case management to the much beleaguered County Court and regional court centres.

To access Lord Justice Jackson's speech please click here [PDF]

Fixed costs – what’s working?

Fixed costs in PI fast track claims and in IP claims in the Intellectual Property Enterprise Court (IPEC) are working – claims issued in the IPEC have doubled in the two years post implementation of the fixed costs regime there.

Fixed costs - so what next?

It’s been five years (cue Bowie song) since Jackson LJ’s Final Report, there shouldn’t be further delay – let’s get on and implement fixed costs in non-PI fast track claims. Without them, non-PI fast track claims are uniquely devoid of any kind of costs management, not being subject to costs budgeting nor to fixed costs.

Fixed costs - why stop at the fast track?

The Final Report also recommended fixed costs for the lower regions of the multi-track and, again, Jackson LJ sees no reason not to get on with developing an appropriate scheme (perhaps at the £250,000 claim value limit)  - be it a model based on the CMS Cameron McKenna LLP proposal, a system of scale costs subject to an overall cap or on guidance drawn from a scheme of fixed costs of the kind operated in Germany. And who should be getting on with it? The Civil Justice Council Costs Committee or, if they don’t have the resource, then set up a judge-chaired separate working party.

At any rate let’s get on it – litigants would actually prefer costs certainty even if this means less costs recovery.

Costs management – yes, it is working

It’s had its teething problems but by and large Jackson LJ concludes that as practitioners become more familiar with the process and the use to which Precedent H** can be put, he believes opposition is receding and positive endorsement increasing.  What’s your experience?

Court Administration - more money please

Plans are currently being implemented to install an integrated IT system for electronic case management in the Rolls Building. This is good, as are the plans subsequently to roll it out to other courts and the regional courts centres. But can they wait that long? Jackson LJ thinks not. Behind every civil society lies an effective and efficient judicial system. The county courts and regions are suffering under the burden of cut-backs in permanent staff coinciding with increased civil justice reform (particularly given the increased number of litigants in person who inevitably take up more of the court back office time) to expect them to be able to cope with continued paper-based systems is expecting too much. Thus, whilst he welcomes the Government’s commitment earlier this year to spend £75 million a year for five years on the court system and IT, he calls for further funding, rather than reduced expenditure, to assist the county courts and regional courts centres. Am sure some practitioners, frustrated by documents ‘lost at court’ and inaccurate listing appointments being sent out, will have something to say on this too.

Is this of wider benefit? Most certainly – the Government is anxious to promote small businesses as vital to the economy, small businesses are exactly the breed of litigant who are struggling with an inefficient court system – the inefficiencies result in higher litigation cost. Small businesses need an efficient and organised court system in which to resolve their disputes.

Did anyone mention Mitchell?

And, just in case you hadn't realised, apparently Mitchell was not his fault—see his partially dissenting judgment in Denton. For content on Mitchell, Denton and beyond see our blog posts and, for LexisPSL Dispute Resolution subscribers, bespoke news analysis and Practice Notes, including: Court of Appeal: 'Mitchell Appeals' unanimously allowed (Denton, Decadent and Utilise), Relief from sanction—how the courts are applying Mitchell and Compliance and relief from sanctions—key decisions.

*LexisPSL Dispute Resolution subscribers can see Practice Note: Jackson final costs report for further guidance.

**LexisPSL Dispute Resolution subscribers can see: Precedent H—costs budgeting

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