Lord Justice Jackson gave us all some weekend reading last Friday with a 1,000-page preliminary report on his review of civil litigation costs. And what a document it is.
“Oh God! It’s so big,” declares Edwin Coe litigation partner David Greene.
“I suppose it helpfully articulated the issues,” adds Mayer Brown partner Clare Canning.
Scores of litigators were queuing around the block to comment on Jackson LJ’s review, but in the end was there much to comment on?
Much has been made of the year-long review, which was commissioned by the Master of the Rolls Sir Anthony Clarke last November. Lawyers across the City and beyond were sceptical about whether it make any difference at all? Why is it being done now, they asked? Should the Master of Rolls do the review himself?
There is no doubt that Jackson LJ has put the hours in. The sheer depth of the report tells many people what they already know, but deep down in the detail there are some real hints about how he sees the litigation process developing.
First, he’s right to say that one size will not fit all. Had Jackson LJ even dared to suggest otherwise he would have found himself in the middle of a storm – and when dealing with litigators that wouldn’t be a fun prospect.
Second, Jackson LJ appears to be leaning towards the modernisation of conditional fee agreements. CMS Cameron McKenna head of dispute resolution Liam O’Connell points to arguments surrounding after-the-event (ATE) insurance and suggests it is now in the “firing line”.
He says: “It’s seen as an unnecessary cost of litigation that can and should be eliminated.”
But wholesale change of the costs shifting rule would be impossible. An entire industry has grown up around Lord Woolf’s CFA regime and Jackson LJ can see that it offers some benefit to practitioners.
But it also has its downfalls and Jackson LJ has hinted that the system should be modernised with a fixed costs regime installed for fast track cases and a new process for personal injury claims. Costs capping would appear to be rejected.
Sound familiar? Didn’t the Ministry of Justice (MoJ) publish similar findings in April 2007 after spending many months looking at personal injury? Under those proposals, claimant lawyers would no longer be able to claw back referral fees from claims businesses and ATE premiums through the settlement. Instead success fees would pay the solicitors’ costs, which were expected to become proportionate to the overall settlement.
After more debate and more reviews those suggestions were rejected.
“Here we go again,” says one senior partner. “It’s another bloody review for review’s sake. It would be far better to empower the judges than waste time doing this.”
But, to be fair to Jackson LJ, Canning at Mayer Brown says the report is a “valiant effort”.
And Jackson LJ seems to have achieved the near impossible by impressing the Forum of Insurance Lawyers. President Anthony Hughes says: “What’s particularly pleasing to see is that the report is neutral in tone and apparently free from political interference. As a consequence, we feel that Jackson has the real potential to deliver.”
The onus is now on the litigation profession to pull together and find a way to improve access to justice.
Desmond Brown, chairman of the Bar Association, speaks for a large proportion of the profession when he says: “Public funding for civil cases is now unavailable in many areas. Very careful consideration therefore needs to be given to the means whereby meritorious litigants are assured of the access to justice which they deserve.”
London is a world class litigation centre, but for it to stay as such it must modernise.