Lord Scott of Foscote called for the abolition of costs recovery orders and litigation privilege during his speech at The Lawyer Monte Carlo.
Law Lord Scott, who has held the posts of Head of Civil Justice and Vice-Chancellor, has already suggested abolishing recovery costs to the Lord Chancellor.
“You scrub the huge additional costs that cost assessment adds to the inevitable costs the litigation is going to incur anyway,” he said.
He argued that wasted costs orders should be strictly implemented for reasons of natural justice but otherwise the profession should consider doing away with costs recovery orders entirely.
He used conditional fee agreements as an example, saying: “If you are a defendant, the better your case and the more promising your defence, the more you will have to pay in costs if you lose.”
Scott even argued that ultimately the financial cost to winning parties would be built into the system. “It may even be an item to be, in a rough and ready fashion, reflected in levels of damages,” he said.
His views drew a mixed reaction from chambers. William Wood QC, of magic circle set Brick Court chambers, says: “It seems fundamental to justice to recover costs from the person who has driven you to court. I tell clients they must bear a third or a quarter of the costs and that is iniquitous. But to reflect the costs in damages does no more than just change the label.”