Lord Justice Jackson recently hosted a seminar at Cardiff University to discuss fixed fees in Judicial Review matters and generally.
Theodore Huckle QC opened the presentations with a compelling case as to why fixed fees should not cover Judicial Review cases. He commented that a fixed fee regime would not sustain specialist legal advice. He ruled out an appetite for QOCS on the basis that many Defendants in Judicial Review cases succeed. He suggested that fixed costs will cause real damage to this practice area. He preferred the Aarhaus regime which caps liability for adverse costs. He suggested that legally aided claims are already heavily costs managed and should be excluded from either a fixed fee or Aarhaus regime. He concluded that the Government should focus on promoting access to justice and not simply on reducing costs.
Mr Huckle's message was very much echoed by Richard Buxton who also favoured the Aarhaus regime. He added that BTE rarely covers Judicial Review, and also questioned the Government’s motive on the basis that it appears to be reducing access to justice. He suggested that interested parties should be required to contribute towards adverse costs. Debate followed as to the ranges of fees in Judicial Review cases and the current limitations on accessing justice.
The second half of the seminar commenced with District Judge Simon Middleton who looked at the structure, rather than the principle, of a potential fixed fee regime. He referred to the fact that the Court has the power to effectively case and costs manage, but these powers are not always being utilised. He suggested a new track for fixed fee regimes which extract and impose the existing case management powers for managing cases proportionately. He went on to talk about the current PI fixed fee regime where exceptions are considered retrospectively and commented that this was not helpful as it did not provide the certainty that is intended under a fixed fee regime. He suggested that exceptions could be considered at the allocation stage and that there could be bolt-ons for items which are in issue or exceptions to the norm. In terms of the stages where payments will be made under a fixed fee regime, Simon Middleton preferred a chronological sequence rather than one that sits alongside the phases. If payments were made in accordance with Precedent H phases then there could be a lot of room for debate as to whether a phase was prematurely commenced and whether all work had been completed under that phase. Finally he considered Part 36 on the basis that the current fixed fee regime is dis-applied for the period after beating a Part 36 offer on the basis of an entitlement to costs on the indemnity basis. He commented that this removes the certainty intended under a fixed fee regime and again he would prefer a fixed bolt-on in such circumstances.
Stephen Webber concluded the presentations. He suggested that a fixed fee regime should be evidence based. He too preferred a chronological sequence for payment under a fixed fee regime. He talked about the difficulties of knowing whether a case fell under the fixed fee regime until a solicitor has sufficient expert evidence to assess quantum. He preferred an alternative approach to fixed fees which would be to allow the costs management process, which is improving, to develop and provide greater comment or influence over the incurred costs. He suggested that any extended regimes should be piloted at the lowest levels first and reiterated that the remuneration should be evidence based. Finally he saw practical difficulties in ring-fencing fees of Counsel on the basis that the Claimant’s solicitor should decide how resources are appropriately spent.
This seminar provided a helpful insight as to how fixed fees may work and some of the challenges faced by LJ Jackson and his working group.