A Ministry of Justice consultation on the proposal, 'Extending Fixed Recoverable Costs in Civil Cases', closed this week.
Responding to the consultation, however, the Association of Personal Injury Lawyers (APIL) urged ministers to consider instead a dedicated ‘intermediate track’ for a limited amount of cases that meet a clear set of criteria―as originally proposed by Sir Rupert Jackson, former Court of Appeal judge and architect of the 2013 civil costs reforms. APIL believes the track should have its own procedure, with specific exclusions.
Gordon Dalyell, APIL president, said: ‘Injured people are already burdened with high court fees.
‘Ill-planned and ill-conceived fixed recoverable costs mean they face further inequality against well-resourced defendants. Controlling disproportionate costs above the current fast track level is best achieved through careful costs management and budgeting.'
He said the government would not achieve its aim of controlling costs by ‘shoehorning’ cases into an extended fast track.
“Defendant behaviour is one of the biggest causes of escalated costs and there needs to be a proper analysis of this before anything is put in place,’ he said.
‘It is not uncommon for a defendant to request a disproportionate amount of information from the claimant from the outset of a case, for example. Lawyers representing injured people will not be able to do their job effectively if they are unable to recover the costs for their work.’
Also responding to the consultation, CILEx, the Chartered Institute of Legal Executives, warned that the use of fixed recoverable costs for low-value cases has already pushed smaller law firms out of the market, and the proposed extension can only make the situation worse.
It said small firms are unable to manage the volume of claims required to achieve a balance between profitable and unprofitable cases. This restricts choice for the consumer.
CILEx said the consultation fails to take account of the Competition and Markets Authority (CMA) review of the legal services market, which led to regulatory efforts to encourage price and service transparency. It argued that pursuing significant interventions in what is an independent market should be a last resort.
It also stressed the importance of flexible fee rates to accounts for cases where unexpected complexities arise, and suggested judges be given discretion to award modest cost increases.
CILEx president Philip Sherwood said: ‘A healthy market is one where the public have a choice of specialists and generalists, local and national firms, offering their services to the public.
‘What we are seeing is smaller firms being forced to turn away clients because it is not financially viable for them to undertake the work. This is not conducive to a competitive marketplace and ultimately drives down quality and impacts access to justice negatively.’
Meanwhile, the Law Society has called on ministers to give court reforms time to bed in before they consider extending fixed recoverable costs. Law Society president Christina Blacklaws said: ‘There is a genuine risk with more complex claims that the vulnerable and the less well-off will be left unable to seek justice.’
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