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By way of a summary, a key tension recognised by the Jackson Review back in 2010 was that, on one hand, access to justice is only possible if both parties to a case have adequate funding. But on the other hand, access to justice is also only possible if the cost of litigation is proportionate. If costs are disproportionate, then a deterrence effect takes hold and parties hesitate to bring, or even choose to discontinue, what may be perfectly valid claims (or decide not to maintain what may be perfectly valid defences). The risk brought about by high and unpredictable legal costs is that it becomes more difficult, and less appealing, to vindicate the rights granted us by law. Access to justice takes an inevitable hit.
Without wishing to oversimplify, the general philosophy behind Sir Rupert Jackson’s proposals to control costs was one of pre-emption—putting in place a regime that denies the chance of the parties to run up excessive bills in the first place. The proposals included: (1) providing for a general scheme of fixed recoverable costs (‘FRC’)—that is, a scheme where costs at a fixed level only can be recovered by a winning party from a losing party; and (2) imposing budgets for certain cases. Complementing this approach was the introduction of the requirement for judges to exercise case management powers stringently. One only need point to Mitchell v News Group Newspapers (2013) [noting also the gloss added by Denton v TH White (2014)]—where the breaching party was limited to recovering only court fees as a penalty for filing a costs budget just six days late—to appreciate the
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