Yet More Court Reforms

Dominic is an acknowledged authority on civil litigation and liability. He assisted Sir Rupert Jackson between 2010 and 2018 on costs controls and has advised the Government on law reform.

I am absolutely certain that we are going to see more big changes to Civil Procedure. The final part of the Jackson parcel of proposals will be in place by the end of next year or possibly early 2021. A Government Consultation closed in June 2019. The promised response by September 6th will not, a senior civil servant tells me, be delivered in time, but it will come.

Fixed costs are coming to litigation and many cases will be caught. It is true that fixed costs already apply to lower value personal injury cases. The plan is to impose fixed costs on almost all costs-bearing matters up to £25,000, regardless of subject matter. Cases worth between £25,000 and £100,000, where at present costs are at large but subject to costs management (budgeting), will have fixed costs imposed.

Clinical negligence claims throw up exotic problems. There is no avoiding the fact that they are often sensitive and emotional. The competent investigation of an oft disputed claim will demand expertise, and more than one discipline may be engaged.

For cases worth up to £25,000 there has been an ongoing Consultation to try and determine a claims protocol and a scale of fixed costs. There is no sign of progress. A target to produce detailed proposals by December 2018 has sailed by. I recently attended a talk by the Senior Costs Judge who sounded pessimistic about anything changing soon.

For cases worth over £25,000, complex cases will be excluded. Sir Rupert Jackson in his July 2017 recommendations rightly said that matters involving more than 2 experts a side giving evidence would be excluded; so would an action likely to last more than 3 days. Addressing clinical negligence, he doubted that anything but the most straightforward of cases would fit within his model.

Whilst Solicitors and barristers would see their fees strictly controlled by the fixed costs regime, experts would not! That is not to say that experts can charge as they like with impunity. Accurate figures must be supplied to the Court for the purpose of budgeting. The Court will scrutinise costs carefully in pursuit of proportionate expenditure.

I see nothing on the horizon to regulate fees payable to experts. The Lawyers are envious!

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