Fixed Costs Proposal Raises Questions on Access to Justice

1 February 2016

Bar Council Chair Chantal-Aimée Doerries QChas responded to Lord Justice Jackson's speech on 28 January 2016 to the Insolvency Practitioners' Association, "Fixed Costs - The Time has come", calling for recoverable costs to be fixed in all claims valued at up to £250,000.

She said: "We look forward to reviewing Lord Justice Jackson's proposals in detail .Where litigation is straightforward, fixed costs may help to resolve disputes more efficiently, but designing and implementing such a scheme will require very careful thought  to avoid unintended consequences.

"Large corporations and governments may well be willing to spend large sums of money - beyond what is recoverable - on legal disputes with individuals or smaller corporations whose costs are fixed at a much lower rate. Instead of levelling the playing field, this proposal could tilt it further in favour of big business and the state.

"There is also a risk that access to justice will be restricted. Using the value of a case to determine costs will not always be appropriate. A low value but legally complex case may demand a great deal more work than the allocated cost band will allow. This means lawyers may not take on complicated, low value cases, thus preventing legitimate claims from being pursued.

"Lord Justice Jackson's acknowledgement of the need to build in a system of regular reviews or index-linking to such a scheme is eminently sensible. This is a feature which has been notably absent from previous schemes.

"It is in the interests of justice to ensure that costs in legitimate, complex cases are not capped at such a level that they become unviable to pursue with the support of properly qualified and experienced legal professionals."


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