Lawyers Up In Arms Over Extension Of Fixed Costs To £250K - there is an alternative…
In light of Lord Justice Jackson admitting that his proposed extension of fixed costs to all civil claims worth up to £250,000 will no doubt produce some “winners and losers”, lawyers across the industry are strongly voicing their opposition to its inevitable impact.
The Bar Council has warned that the move would further squeeze out young barristers from the legal process making them irrelevant.
“Junior members of the Bar who used to undertake pleadings and drafting work now tend only to get instructed at a late stage of a fixed-costs case, primarily for trial, and then often only in cases where there is an allegation of fraud or dishonesty or some issues of complexity.
“The lack of an independent adviser in the guise of a junior barrister early on in a case may also result in unnecessary cases going to trial and/or under settlements of cases.”
The Council continued that justice for consumers would be curbed as junior barristers traditionally played the role of independent specialist referrers, thus impacting on the courts.
The Law Society has usually come out as supportive of Lord Justice Jackson’s original proposal to fix at £25,000 but appears to be balking at the “tenfold increase” making many cases “economically unviable”, according to the society’s president Robert Bourns. He said that the new regime could curtail the ability of solicitors to investigate with any meaningful depth claims for their clients.
To support the change however the society has always pressed for certain terms and conditions:
- Cases should be non-complex and straightforward.
- Costs fixed at a reasonable rate to allow for the work to be done to a high standard by qualified solicitors.
- Plenty of scope for exemptions and unusual cases.
- Initial setting of rates and thresholds to be based upon rigorous empirical evidence and research and reviewed periodically.
- Court procedures and court rules to follow suit.
- Upgraded IT in the court system to support fair delivery of the new regime.
The Association of Costs Lawyers (ACL) and the Personal Injury Bar Association (PIBA) have both also jumped into the fray defending the nearly new current system – just three years old – as being “successful” enough in dealing with issues of excess in litigation.
PIBA were quick to highlight in cases where claimant solicitors were unwilling to take on, the “representation vacuum” would be filled by claims management companies or claimants becoming litigants in person. It continued by saying that access to justice would be blocked for less well-off clients as “fixing costs does not reduce fees” simply “transfers them to another party in this case the claimant.”
There is also the inevitable imbalance between claimant and defendant in terms of their financial muscle and who’s got the deepest pockets.
The alternative – a fairer system whilst still controlling costs could be found if judges were to determine budget costs for cases by reference to average costs taken from a bank of similar cases. It would be then for parties to argue how their case may differ from the norm. Judges don’t currently have this kind of data at their disposal but a software solution like LHQ could provide this ability.