Will 2017 be an all-out assault on access to justice or provide better access to the courts?

As we enter 2017 those of us at the front line of civil justice are preparing ourselves for further reforms. Whether those reforms turn out to be an all-out assault on access to justice or will facilitate better access to the courts remains to be seen. On 10 January 2017 I will be attending a round table discussion hosted by Lord Justice Jackson who has been commissioned by Lord Chief Justice Thomas to undertake a review into the feasibility of introducing fixed recoverable costs in claims up to the value of £250,000.

As a litigator I may be expected to naturally adopt a defensive approach to such reforms but I will approach the meeting and reforms with an open mind because if change promotes access to justice, clients will inevitably become more frequent users of the courts. I shall be joined at the round table by two clients as Jackson is keen to hear the client’s perspective on costs recovery in litigation.

In Jackson’s lecture to the IPA in January 2016 he noted that the number of new cases in the Intellectual Property and Enterprise Court had nearly doubled following the introduction of fixed costs.

As with many of the recent reforms (the removal of recoverable success fees and after the event litigation insurance being one of them) the policy makers seem fixated at curtailing the recoverability of litigation costs and there seems to be little attention on the cause of the costs. In my experience even the best planned and projected managed litigation can be unnecessarily expensive.

The drivers of costs are often not the fault of the ‘victor’s’ lawyers (the victor being the receiving party entitled to recovery costs following success at trial or an agreed settlement on a ‘plus costs’ basis). The costs in litigation most often derive from unnecessarily cumbersome procedural rules, inefficiency and poor service from the court service (most often caused by the back office) and tactical or unreasonable conduct of the opposing party.

Whilst I am in favour of reducing costs in litigation, any fixed costs regime needs to be part of a ‘package’ of reforms that gives lawyers the procedural rules and court system to deliver litigation services on a budget. In addition, there needs to be a method of policing litigation conduct and compensating the victor for conduct which causes the cost of litigation to rise beyond fixed recoverable thresholds.

In a series of articles I shall be exploring the drivers of litigation costs further and considering ways of policing and/or compensating cost causing conduct. I am inviting views and comments from fellow practitioners involved in commercial and insolvency litigation – please email your comments to lth@debenhamsottaway.co.uk. Wherever possible I will attribute your comments in any written submission provided to Jackson.