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Senior Judiciary Announces Review of Fixed Recoverable Costs

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Lord Justice Jackson has been commissioned to undertake a review of fixed recoverable costs, to be completed by 31 July 2017.

Lord Justice Jackson has been commissioned to undertake a review of fixed recoverable costs, to be completed by 31 July 2017.

The commissioning, by Lord Thomas, the Lord Chief Justice, and Sir Terence Etherton, the Master of the Rolls, follows the commitment in the joint vision statement Transforming our Courts and Tribunals that:

“We will look at options to extend fixed recoverable costs much more widely, so the costs of going to court will be clearer and more appropriate. Our aim is that losing parties should not be hit with disproportionately high legal costs, and people will be able to make more informed decisions on whether to take or defend legal action.”

The Review will be undertaken by Lord Justice Jackson as a logical extension of his wider review of civil litigation procedures and costs (published in 2010), in which he first recommended the application of fixed recoverable costs.

This has been agreed with the Government and will inform its public consultation on proposed reforms, which will follow the review after consideration of its recommendations.

Lord Justice Jackson will formally commence his review in January 2017, but will be inviting written submissions on this topic immediately.

The terms of reference for his review are as follows:

  1. To develop proposals for extending the present civil fixed recoverable costs regime in England and Wales so as to make the costs of going to court more certain, transparent and proportionate for litigants.
  2. To consider the types and areas of litigation in which such costs should be extended, and the value of claims to which such a regime should apply.
  3. To report to the Lord Chief Justice and the Master of the Rolls by the 31st July 2017.

Lord Justice Jackson said:

“I have set out my present views on the principles of fixed recoverable costs in the final report of my review and in recent lectures and publications.

“I have been commissioned to undertake this review because it is integral to the overall package of reforms which I originally proposed.  Chapter 16 of my final report recommended that serious consideration should be given to extending fixed recoverable costs to the lower reaches of the multi-track after the other reforms had bedded in.

“Although the momentum is heavily for reform, the review will provide ample opportunity for comments and submissions on the form and scope that reform should take.  I am inviting the views of practitioners, users of the civil courts and any other interested parties on these points. Seminars will be held in London and elsewhere to discuss the issues.  There is a great deal to be done on the detail of the review, which will inform the Government as it prepares proposals for formal consultation in due course.”

Lord Justice Jackson has invited written evidence or submissions to assist the review by Monday 16th January 2017, to be sent to:

If evidence is being submitted of actual recoverable costs, this should identify the type of case (e.g. clinical negligence, property, judicial review etc), and the source of evidence (e.g. detailed assessments under the post-April 2013 rules, approved budgets, agreed budgets etc).

Material submitted should take account of the Civil Procedure Rules on proportionality, in particular the factors set out in rule 44.3 (5).

Views are also sought on the level of claim at which fixed recoverable costs should stop and costs budgeting should apply instead.

Other issues that the review will need to consider, and on which views are welcomed, are how to accommodate counsel’s fees, experts’ fees and other disbursements within a fixed recoverable costs regime.  Another issue for consideration is the difference which frequently arises between claimant and defendant costs.

Notes for Editors

  1. The final report of the Review of Civil Litigation Costs. Chapters 15 and 16 covered fixed costs.
  1. Lord Justice Jackson’s recent lectures on fixed recoverable costs: Fixed Costs – The Time Has Come and The future for civil litigation and the fixed costs regime
  1. The assessors appointed to advise Lord Justice Jackson during the review are:
    Sara Ashby, Nicholas Bacon QC, Professor Richard Disney, Professor Paul Fenn
    Senior Master Barbara Fontaine, Senior Costs Judge Andrew Gordon-Saker
    Richard Lander, David Marshall, HH Judge Martin McKenna, District Judge Simon Middleton, Andrew Parker, Vikram Sachdeva QC and Nicole Sandells.


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