Radical reforms to promote access to justice at proportionate cost
CIArb News / 14 January 2010
On 14 January 2010 Lord Justice Jackson published his final report following the Civil Litigation Costs Review, as commissioned in 2009 by Sir Anthony Clarke, the former Master of the Rolls.
The report, to which CIArb contributed, comprises 584 pages and makes key recommendations which include:
- success fees and after-the-event insurance premiums should cease to be recoverable
- awards of general damages for pain, suffering and loss of amenity be increased by 10%
- the maximum amount of damages that lawyers may deduct for success fees be capped at 25% of damages (excluding any damages referable to future care or future losses)
- lawyers should not be permitted to pay referral fees in respect of personal injury cases
- introduction of Qualified one way costs shifting (meaning that the claimant will not be required to pay the defendant's costs if the claim is unsuccessful, but the defendant will be required to pay the claimant's costs if it is)
- fixing of costs in fast track litigation
- establishment of a Costs Council to review fast-track fixed costs, as well as other matters.
CIArb welcomes the report's attention to ADR, in particular mediation. Noting the "sad fact at the moment that many cases settle at a late stage, when substantial costs have been run up," Justice Jackson describes mediation as having "a vital role to play in reducing the costs of civil disputes, by fomenting the early settlement of cases" and he suggests that an appropriately structured costs regime will encourage the use of ADR.
In relation to mediation, Lord Justice Jackson also recommends that:
- there should be a campaign to ensure that lawyers, judges, the public and small businesses are properly informed of how ADR works, and the benefits that it can bring
- an authoritative handbook for ADR should be prepared, explaining what ADR is and how it works and listing providers of ADR services.
In support of CIArb's stated position, as outlined in the Institute's response to the consultation on the EU Mediation Directive, Justice Jackson warns against the introduction of mandatory mediation. He says, "ADR should not be mandatory for all proceedings. The circumstances in which it should be used (and when it should not be used) will vary from case to case, and much will come down to the judgment of experienced practitioners and the court."
A copy of the full report is available to download from the information and resources section of the website
Any members wishing to comment on or discuss the report can visit the CIArb discussion forum (login required).