Civil litigation costs

The Jackson Report Sweeping changes to the costs of civil litigation are expected to be recommended this December, when Lord Justice Jackson publishes his final report on the review. It ends a year of forensic study into the costs involved in civil litigation.

MPS has long held concerns about the way in which costs are managed in clinical negligence cases. Of all the jurisdictions MPS deals with, England and Wales are the only areas where damages form the lowest percentage of total payments in low value medical claims – and where claimants’ costs form the highest percentage.

We are hoping to see:

• A more active role for the courts in managing cases, to control the costs.
• Alternative solutions, rather than the abolishment of cost-shifting (the principle of the loser paying the winner’s costs). Cost-shifting is an important deterrent to unmeritorious claims, and increasing damages to allow for costs could reduce transparency and cost control even more. Alternatives could include restricting costs recovery to scales reflecting value and complexity.
• Tighter controls for conditional fee arrangements (CFAs), where claimants only pay legal fees in the event of a successful outcome. CFAs are widely seen as a primary driver of escalating costs, giving claimant lawyers an unhealthy stake in prolonging a claim. Lawyers charge a “success fee”, which can double the lawyer’s usual hourly charge.
• Rethinking of the recoverability of ATE premiums – a substantial premium to cover the “risk” of having to pay defendants’ costs. These are usually agreed well before any such risk arises. Claimants’ costs will be recovered from paying defendants, so claimants themselves never have to pay their own costs and have no incentive to restrain them.

Hopefully, the impending cycle of the election year will not swamp these important issues and prevent them from receiving serious consideration from the government.