Costs issues in 2015

To quote the late, great actor Peter Finch in perhaps his finest role, in Network: 'I'm as mad as hell and I'm not going to take this any more.'

How many litigators - mostly on the claimant side - alongside all those lawyers working within the decimated public funding system, feel like this? I suspect most of those practising outside the Commercial Court (and maybe some within it).

It all started with the Access
to Justice Act 1999 - a misnomer if ever I heard one. In itself an apparently sensible response to the withdrawal of public funding from almost all areas of personal injury work, it spawned an industry that was seen as owing as much to financial expediency as it did to access to justice.

Hardworking and committed solicitors who provided a way for their clients to access justice became lumped together
with those who simply saw
a profitable bottom line. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 was the result, and along with it came another major erosion of public funding.

Intolerable strain

So, what has 2015 contributed
to access to justice? Resources are limited and the Ministry of Justice is not a 'protected' department: it must pay its
way. However, the court fees increase, added to those in the employment tribunals, has meant that fewer cases are being brought because many people simply cannot afford to litigate. The corresponding benefit that should have arisen from the courts having more time to deal with those cases that are still being litigated has simply not happened. More litigants have to act in person, which is not only stressful for them but has put an almost intolerable strain on the judiciary (particularly at district court level) and on an already depleted court staff (further cuts are expected).

As we head towards 2016, moves are afoot to address
some of the problems: HM Courts and Tribunals Service
is awaiting the go-ahead for
a significant investment in court IT to facilitate the introduction
of online dispute resolution, while Lord Justice Briggs has been tasked with producing
a preliminary report on restructuring the entire civil justice system by the end of the year.

Meanwhile, many feel that costs management has not only increased the costs of litigation but also contributed to the significant delays in getting cases heard. While there are signs that cost management
is starting to provide more certainty to litigants, hopefully enabling them to make more informed choices about the conduct of their cases, many lawyers - and some of the judiciary - continue to oppose the regime. As the alternative
to effective costs management
is the likely extension of fixed recoverable costs, practitioners need to think long and hard about what is in their and their clients' best interests.

Looming issues

The looming issue of extending the fixed recoverable costs (FRC) regime is likely to be significant in 2016. As far as access to justice is concerned, this seems on the surface to be a good thing, on the basis that litigants will have certainty over their potential costs liability.

However, if they are set at too low a level and are extended into more complex multi-track cases - as anticipated by the impending clinical negligence costs consultation - then lawyers are not going to be able to provide a full service to their clients. 'Rough justice' may, arguably, be all well and good
in a consumer dispute, but try telling that to a client whose health has been adversely (possibly permanently) affected through the negligence of someone in the medical profession.

To even be contemplating FRC for clinical negligence
cases worth up to £250,000 - the majority of such cases -
is mind-boggling. £250,000 may be a 'low value case' to someone practising or adjudicating in the Commercial Court (Mr Justice Flaux used just this description recently), but it is certainly not to the vast majority of lay claimants litigating in the Queen's Bench Division -
or, for that matter, the Technology and Construction Court (if introduced for clinical negligence cases, it is difficult
to see why they would not be introduced generally).

Another issue that practitioners are going to have to get to grips with is using J-codes to record their time. These will underpin both costs budgeting and the new format bill of costs. The latter is currently going through a voluntary pilot scheme, but there is an ongoing consultation on its format, which may see changes before the compulsory pilot scheme is introduced in the Senior Courts Costs Office (provisionally in October 2016).

One thing is for sure - 2016 is going to be another challenging year. SJ

Sue Nash is chair of the Association of Costs Lawyers