Lord Justice Jackson’s Final Report on Civil Costs

♫ Strike with the strongest hand
Search from the sharpest eye
Pull from the greater
Side of your mind
Tear down the wall that’s stuck
In between soul and mind
Watch as the worlds collide…♫

Lyrics, music and recorded by Broken Iris.

The forward of Lord Justice Jackson’s final report on his Review of Civil Litigation Costs in the UK states as follows:

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.

So begins a comprehensive 584 page report that examines civil costs in the UK that recommends: “radical changes to how claimants fund litigation and which party should bear litigation costs.”

In November 2008 the then Master of the Rolls, Sir Anthony Clarke, appointed Lord Justice Jackson to lead a fundamental review of the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportionate cost.

The history of the Report is as follows:

The Jackson review was set up in late 2008 by the then Master of the Rolls, Lord Clarke of Stone-cum-Ebony, because the senior judiciary were – and are – concerned about the escalating costs of civil justice. Those costs are often disproportionate to the issues, in particular the sums at stake.

According to http://www.tsoshop.co.uk:

Lord Justice Jackson was asked to review the rules and principles governing the costs of civil litigation and to make recommendations in order to:

• promote access to justice at proportionate cost;
• review case management procedures;
• have regard to research into costs and funding;
• consult widely;
• compare our costs regime with those of other jurisdictions; and
• prepare a report setting out recommendations with supporting evidence by 31 December 2009.

The news release accompanying the release of the report summarizes the key recommendations are as follows:

Sir Rupert’s key findings and recommendations include:

• Proportionality – the costs system should be based on legal expenses that reflect the nature/complexity of the case (Chpt 3);
• Success fees and after the event insurance premiums to be irrecoverable in no win, no fee cases (CFAs – Conditional Fee Agreements), as these are the greatest contributors to disproportionate costs (Chpts 9 &10);
• To offset the effects of this for claimants, general damages awards for personal injuries and other civil wrongs should be increased by 10% (Chpt 10);
• Referral fees should be scrapped – these are fees paid by lawyers to organisations that ‘sell’ damages claims but offer no real value to the process (Chpt 20);
• Qualified ‘one way costs shifting’ – claimants will only make a small contribution defendant costs if a claim is unsuccessful (as long as they have behaved reasonably), removing the need for after the event insurance (Chpts 9 & 19);
• Fixed costs to be set for ‘fast track’ cases (those with a claim up to £25,000) to provide certainty of legal costs (Chpt 16);
• Establishing a Costs Council to review fixed costs and lawyers’ hourly rates annually, to ensure that they are fair to both lawyers and clients (Chpt 6);
• Allowing lawyers to enter into Contingency Fee Agreements, where lawyers are only paid if a claim is successful, normally receiving a percentage of actual damages won (Chpt 12); and
• Promotion of ‘before the event’ legal insurance, encouraging people to take out legal expenses insurance e.g. as part of household insurance (Chpt 8).

Lord Justice Jackson’s full report can be accessed on the judicial website http://www.judiciary.gov.uk/about_judiciary/cost-review/reports.htm.

His preliminary report, which contains details of his review of evidence and explanatory background material for the final report, can be accessed on the judicial website http://www.judiciary.gov.uk/about_judiciary/cost-review/reports.htm.

While some of these recommendations are specific to the UK, no doubt this report will help tear down walls far beyond the UK.