The Jackson Review of Civil Litigation Costs

INTRODUCTION

Lord Justice Jackson yesterday published his final report into costs in civil litigation following the extensive process of consultation undertaken last summer after the publication of his preliminary report in May 2009. The report is a detailed and substantial one extending to over 550 pages and will no doubt be the subject of considerable debate in the legal profession in the coming weeks. In this note we briefly analyse the impact of the main recommendations.

PROFESSIONAL NEGLIGENCE DISPUTES

Enforcement of Protocol compliance Jackson has overcome the initial scepticism in his preliminary report regarding most of the Pre-action Protocols (other than that for construction and engineering disputes) and recommends that they should remain. The Professional Negligence Pre-action Protocol in particular is found to be effective and no specific amendments are proposed to it. However in order to promote more effective enforcement of the Protocols Jackson recommends that the parties should be able to make pre-action applications if one party is failing to comply with the Protocol and the Court should have power to award summary costs against the defaulting party at that stage. Although the Courts will have to be wary of frivolous/excessive applications at the pre–action stage on balance this provision is likely to be of assistance to defendants as they will be able more easily to force claimants to properly particularise claims and to produce full supporting documentation before issuing proceedings. Success fees/ATE premiums Jackson has held to the view mooted in his preliminary report that success fees and ATE insurance premiums are one of the major contributors to disproportionate costs in civil litigation and should cease to be recoverable from unsuccessful opponents. Clients will be still be able to enter into 'no win no fee' agreements but any success fee will have to be borne by clients out of their damages rather than recovered from the other side. This is clearly a welcome development for defendants. Claimant lawyers will now be more reluctant to encourage litigants to embark upon 'no win no fee' claims and the recommendation will also have an obvious impact upon the level of damages awarded to successful claimants in any event. Costs shifting Jackson recommends that to compensate for the loss of recoverability of ATE premiums qualified one way costs shifting for certain categories of litigation should be introduced – namely...