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The Jackson Report is a balanced and critical look at the cost of litigation, which practitioners should not dismiss as yet another review but fully engage with, says Andrew Parker
Sir Rupert Jackson's 'Preliminary Report on Civil Costs', published on 8 May, has rightly been described by the Master of the Rolls as a 'tour de force' (see solicitorsjournal.com/costs for our coverage and access the text of the report).
Simply as an academic work (it is much more than that), the scale and breadth is astounding. In 64 chapters compiled in just four months, the report reviews all aspects of the costs rules, considers procedural areas where costs problems arise and gives detailed attention to 12 specific practice areas, including five chapters on 'personal injuries litigation'. There is an instructive comparison with nine other jurisdictions around the world, from Scotland and Germany to New Zealand and the Eastern Caribbean, taking care to highlight differences in procedure which may explain the approach to costs.
The review has been provided with substantial quantities of data from a number of sources, set out in the 30 appendices to the report and which form the basis of some of his commentary.
Options for the future
However, the importance of the report is not simply in reviewing all this information; it lies in various options for reform that Sir Rupert has outlined in the individual chapters and which form the basis for consultation. These are not just 'tinkering', they include challenges to established principles, for example:
- Should we retain the 'English Rule' of the loser paying the winner's costs? (Chapter 46.)
- Can we justify the concept of the winning party recovering all costs reasonably incurred, when that looks increasingly out of step with other jurisdictions? (Chapter 46.)
- Should we introduce contingency fees? (Chapter 20.)
- Should we abolish recoverability of success fees and ATE premiums? (Chapter 47.)
- Should we reintroduce some form of Conditional Legal Aid Fund for civil claims? (Chapters 18 and 19.)
In each case the alternatives are considered: Sir Rupert does not at this stage express any preferences, save for noting that no submissions so far have favoured a general abolition of costs shifting.
Procedural review
It is not possible to view costs in isolation from procedure and part of the remit was to 'establish the effect case management procedures have on costs'. The report examines a number of procedural steps and their effect on litigation costs, with a particular focus on disclosure, use of experts and witness statements (chapters 41 and 42). Here again, comparison with other jurisdictions is instructive '“ and the questions posed are not easy ones. Should we for example retain the current disclosure rules with all their attendant expense, or should we modify and reduce the duty of disclosure?
In personal injuries litigation Sir Rupert has gone further, identifying the assessment of general damages as generating significant costs in its own right. Chapters 27 and 28 outline the points-based system adopted in France, Italy and Spain and examine the concept of computer-based assessment, accepting that there are criticisms and that it is arguable that the current approach to general damages negotiation may lead to under-settlement.
Consultation and the next steps
The preliminary report forms the basis of consultation until 31 July and submissions are actively encouraged; individual practitioners may want to focus on those chapters of particular interest to them. Sir Rupert will then deliver his final report by 31 December.
It is very easy to get immersed in the detail, but practitioners should be encouraged to take a step back and look at the bigger picture, with a view to creating sustainable change in an area where there have been significant problems for many years.
Practitioners need to take this review seriously. It would be easy to dismiss this as just another review: there have been several on costs issues alone in the last few years. This one is different '“ Sir Rupert is not pursuing any political agenda and it is very clear that he approaches this with an open mind. It is a balanced and critical look at why litigation in England and Wales is expensive and asks what can be done about it.
The Master of the Rolls has made it clear that the senior judiciary are behind this review and will do what they can to ensure that the final recommendations are implemented sooner rather than later. For this and many other reasons, the preliminary report should be required reading for every litigation practitioner.