On 13 July 2022 Sir Geoffrey Vos Master of the Rolls opened the Civil Justice Council Costs Conference. The PNLA and other interested groups were invited to attend on 13 July 2022 at Mary Ward House in London for a wide ranging discussion of topics relating to civil costs Civil Justice Council Consultation Agenda 13 July 2022
Robert Johnson of Healys LLP https://www.pnla.org.uk/members/mr-robert-edward-johnson-13437/ kindly attended on behalf of the PNLA and provided his thoughts on the day as set out below. The PNLA welcomes your further thoughts for us to pass on to the Civil Justice Council for the planned September 2022 webinars to which Robert refers contact: firstname.lastname@example.org
Feedback from Robert Johnson of Healys LLP
Thank you very much for passing onto me your invitation to the above event which I attended yesterday. The room was full with the great and the good and the less so (and needless to say, I was in at the latter category). Certainly, there were a range of suggestions, complaints, criticisms, praise, ideas et al in relation to the current cost regime and how it could/should be improved.
The conference followed the agenda as set out in the attached. My (brief) summary of what I consider to be the more informative comments are set out below.
Welcoming key note address
Perhaps not surprisingly, the issue of cost (and digitalisation) should always be assessed by reference to seeking to increase and enhancing access to justice.
The current system is far from perfect and it does need to change but beware of “unintended consequences”
We have an adversarial system and hence the introduction of any changes in the system will be sought by the solicitors to be manipulated to the advantage of their clients.
Pre-Action Costs and Digitalisation
The Solicitor Act 1974 (almost 50 years old) is no longer fit for purpose. The distinction it draws between contentious and non-contentious business has already been significantly eroded by (e.g. CFA’s, DBA’s etc.). However, it is unlikely that this will be replaced any time soon because it will take a reasonable amount of parliamentary time and this is not the government’s current priority.
What Pre-Action costs should be recoverable and from when should they be recovered? What about the parties who negotiate (perhaps successfully) before taking legal advice?
What about LiP correspondence?
PAP’s with fixed costs largely addresses the various conundrums with recoverability of Pre-Action costs.
The vast majority in the room wanted to modify the existing system. There were a notable few who wanted it abolished.
Main criticisms are that it increases costs not only in terms of the budgeting process but also because parties tend to maximise the budgets.
The system should be made much simpler as currently it is too complex and costly.
Budgets do not necessarily equate to decrease in costs. Clients still want a Rolls Royce service and will, therefore, pay for whatever is required to win (and regardless of budgets). It might, therefore be argued that the budgets decrease such party’s access to justice because there will be more of an irrecoverable element even if they win.
The budgeting process does add discipline and (probably) decreases the number of detailed assessments.
There was a very vocal contingent (led by Sue Dunn of Litigation Funding) of the importance of budgeting and the need for everyone to engage far more, fully and properly than has hitherto been the case. It is absolutely imperative (according to Sue/the clients) and she includes herself in that category) are aware of what the costs of the parties is going to be.
These are important since they provide at least a benchmark. Some suggested that we should get away from charging fees by reference to time and more by level of experience, level of expertise, complexity and dispute etc.
Guideline/hourly rates are used (and surprisingly to many in the room) in criminal cases in the Court of Protection and are applied rigorously in those divisions.
The unresolved issue discussed was how the rates should be adjusted. It was recognised that they do need to be adjusted and perhaps by reference to the CPI or such like. They should also be reviewed every 3-5 or so years.
Consequences of the extension of fixed and recoverable costs
These are fine provided that fixed fees are set at the right level. That is fine, but there was no clarity from anyone as to how that might be achieved.
Costs capping is not the answer since that simply leads in effect to fixed costs.
I hope the above gives you a flavour of that which was discussed. There are to be three more sessions and all (I believe) to be held by way of webinar in September.
RobertBack to News