Fixed costs in litigation is unpopular and does not need to be the answer
Lord Justice Jackson is currently considering all evidence gathered in support (or not) of introducing fixed costs in litigation. Nothing is ever straightforward in the law with large variations in the circumstances of different parties. That we know. However, this is more than simply whether it is seen through the prism of the defendant or claimant. It also touches on whether there is asymmetry between the two sides.
In the case of an individual claimant versus the state, a police authority or local authority, the imbalance in resources obviously has an impact on whether fixed costs would be workable with many solicitors believing that a new system would make it unviable for solicitors to pursue. At the Lord Justice’s recent review meeting where he heard from both claimants and defendants, there appeared to be a strong consensus for the need for qualified one-way costs shifting (QOCS) in such cases, and many were perfectly happy with the current costs management system.
On the commercial side, there were grumblings that fixed costs could reduce the incentive for defendants to mediate as well as the concern that fixing costs could produce a rise in nuisance claims and claims lacking merit.
City lawyers have also been quick to warn Lord Justice Jackson that fixing costs in commercial litigation would open the doors to overseas competitors, a very real threat in the face of Brexit uncertainty. And that judges already have broad enough powers to control litigation within the current system.
The City of London Law Society (CLLS) said linking proportionality only to the sum claimed ignored the key element behind any decision to pursue litigation – an assessment of the prospect of success against the potential return online crestor. Therefore, fixed costs could potentially deter claims from being pursued, quashing legal rights rather than supporting them.
LHQ software if put into the court system would be able to aggregate data on litigation costs against similar cases and calculate mean figures for types of cases, surely an equitable solution to avoiding fixed costs and further allowing parties to argue why their case differs from the average.