Fixed Costs In Litigation – Why We Need To Fix The Civil Court System To Reduce Costs In Litigation

If Lord Justice Jackson is to implement fixed costs reform for cases in the lower echelons of the multi-track this needs, in my view, to take place simultaneously (or after) wide sweeping reforms have to be made to the civil courts.

In his review on the civil court structure published in July 2016 Lord Justice Briggs acknowledged Jackson's view that changes to the civil court structure would be necessary as part of the package of costs reform. He said "His general approach, which he has been kind enough to share with me in outline, is that he regards the pursuit of an extended fixed costs regime, the further development, improvement and streamlining of costs budgeting and costs management, and the introduction of modern IT into the process of costs assessment as all working alongside the introduction of an Online Court as measures which contribute in a complementary way, rather than in competition, to the provision of an effective overall remedy for the adverse effects upon access to justice constituted by the continuing disproportionality between costs and value at risk in large parts of the workload of the civil courts."

But what are the drivers of costs in the civil courts? What changes need to be made to stamp them out and has Briggs gone far enough in his recommendations? In this article I won't be looking at the procedural codes of the civil court system but rather focusing on the way in which the civil courts operate.

Much of lower value litigation in the multi-track takes place in the county court. Recent cuts and supposed efficiency moves have led to a fragmented county court system. Money claims (essentially any claim for a financial remedy) are issued centrally out of the Northampton County Court (which incidentally operates from Salford), known as the 'Money Claims Centre'. When defences are filed cases are transferred to either the defendant's local court (if the defendant is an individual) or the court chosen by the claimant. These reforms have, in my view, worked well to cut the volume of work undertaken by local county courts around the country.

Problems arise, however, once a case is transferred into a county court. County courts have no way of gauging the number of cases that will come to them and so managing staff workload is extremely difficult. This could be resolved by working out each county court's capacity levels and ensuring that cases are allocated more evenly on transfer. Such a system requires an...