Lord Justice Jackson is calling on the government to extend fixed fee regimes and provide a fixed scale of legal fees for all civil cases with a value of up to £250,000 (with the exception of clinical negligence cases). He has submitted, in a speech in Westminster, that a ‘grid’ of fees, in line with the Costs Budgeting process, could provide prescriptive fees for all cases based on a sliding scale with reference to the claim value. The grid of fees sees each phase of litigation being fixed according to value banding.
This is a proposal which I anticipate will cause great concern within the legal profession. I think, despite some initial resistance, most practitioners will appreciate a degree of fixed fee application, for modest and straightforward cases can and has worked. However, applying the same logic to large and potentially complex cases is, in my view, a very different concept and one which will leave many of the legal profession feeling uneasy.
The Law Society has expressed their own concerns at the proposals with questions around access to justice being asked. Whilst the Law Society acknowledges that more certainty around costs is required, they submit that there must be ‘scope for exemptions and escapes for complex or unusual cases’. It is the view of many that the viability of many claims, to be pursued and explored in the manner they warrant in order to allow a fair result, would almost certainly be hindered by the introduction of these fixed fees.
I would also question whether the fixed fees proposed by LJ Jackson are intended to apply to either the Claimant or Defendant in any given case. It is readily accepted by the Courts that the Claimant's costs of litigation are inevitably higher than those of the Defendant by virtue of driving the litigation.
Finally I would welcome some incentive for Defendant’s to admit liability within the protocol period and in such cases, a fixed fee regime applying. There is quite a contrast between a £250,000 claim where liability is not admitted, with another where liability has been admitted.
I suspect this news will be uneasy reading for many and it seems all we can do at the moment is wait and see. In the meantime I was interested to examine what Paragon’s experience of CMOs was so far in the context of how it compared to what would be allowed if the proposed fixed fees were introduced. The working examples of a cross section of cases demonstrates that the fixed fees would alter the recoveries significantly and, the sums which Judges are allowing as proportionate, vary wildly from those suggested by LJ Jackson. The figures below exclude VAT and disbursements.