Legal costs in civil justice matters continue to be very high on our agenda at the Association of Consumer Support Organisations (ACSO), particularly when they are 'fixed' or are in consideration for being 'fixed'.
At a recent CJC conference on costs, Lord Justice Colin Birss, the Deputy Head of Civil Justice, said that access to justice must be front and central to any costs reform, while Nicholas Bacon QC reminded the conference that fixed costs must be fair, proportionate and reasonable.
We know how important it is to our members and those who depend on them that both these statements are delivered on. To that end, we are focusing on: 1) reviewing the areas in which recoverable costs are already fixed and measuring those costs for continuing fairness, proportionality and reasonableness, 2) analysing and engaging on existing proposals to extend fixed recoverable costs (FRC) in areas where they already exist, or apply them to new areas where they do not, and 3) a more thematic review of costs in civil justice claims.
This blog is an opportunity to provide an update on our progress in these areas.
Existing Fixed Costs
Some areas of civil justice litigation have been subject to FRC for decades. But they have been left to drift significantly out of step with inflation and are now much reduced in real terms. This has been caused by a lack of any implemented review mechanism for fee levels since their inception, an omission mirrored in the latest proposals for further costs fixing. We consider this to be highly problematic from an access to justice perspective, a view recently covered in the Law Society Gazette and Legal Futures.
Our main short-term objective is to establish what this will mean for all civil justice consumers over the next five to ten years. If our initial fears are verified by data-driven predictions, in some areas the future consumer will face a reduced choice in legal representation and increasing damages deductions. In others, the future consumer will simply have no available representation to call upon. We are also analysing the economic impact this has and will have on supplementary services in civil litigation.
It's our intention to use these predictions again to approach policymakers and regulators and request that a review mechanism for fixed costs be reconsidered. Costs, fees, rates, track limits, damages and discount rates adjustments should no longer be made in silo, as each adjustment can have unintended consequences on other facets of civil litigation.
Extending or Establishing Fixed Costs
We have already completed significant analysis, engagement and lobbying around the proposals for the extension of fixed costs in civil litigation, both for the extension of the fast track-related fixed costs (up to a case value of £100,000) and proposals in clinical negligence.
On the former, we have written to the Master of the Rolls with our feedback and recommendations on how to ensure that the extension of fixed costs is as fair, proportionate and reasonable as possible. We have additionally responded to the Civil Procedure Rules Committee consultation on related changes to Qualified One-Way Costs Shifting (QOCS) protections and the provisions for vulnerable consumers.
The date for implementation of the extension to fast-track related fixed costs has been pushed back to April 2023. We will have to see if this remains realistic, especially given broader cost-of-living issues, but in the meantime, we will be continuing our efforts in lobbying and increasing awareness of the significant detriment facing consumers and their representatives should the proposals be implemented as presently drafted, and seeking further clarity in areas where it is missing.
On clinical negligence fixed costs, we responded to the Department of Health and Social Care's consultation on limiting costs for claims worth up to £25,000 after a great deal of engagement with members and stakeholders. We anticipate further government announcements shortly if FRC here are also to be implemented in April 2023, but given that this is a process now in its eighth year, exact timings are difficult to predict.
Thematic Review of Costs
Our thematic review of costs in general in civil litigation is presently focused on our response to the Civil Justice Council's consultation on costs, the deadline for which is 30 September 2022.
This consultation considers four areas: costs budgeting; Guideline Hourly Rates; costs under the pre-action protocols, portals and the digital justice systems; and the wider impact of the extension of fixed costs.
We have already engaged with many of our members to collate their thoughts on each of the substantial topics, and continue to seek insight and opinion through September.
Please contact our secondee Daniel Bates at daniel.bates@acso.org.uk should you wish to find out any more details or contribute to any of the work discussed.