CJC Opens Consultation in Commencement of Working Group’s ‘Holistic’ Review of Costs

In edition 339 of BC Disease News (here), we reported that the Master of the Rolls, Sir Geoffrey Vos, had asked the Civil Justice Council (CJC) to incrementally ‘revolutionise civil costs’ in his keynote address at the Association of Costs Lawyers’ (ACL) annual conference, on 25 November 2021.

At the time, he said:

‘It’s extremely important that we take the opportunity now to consider whether the ways in which we handle costs and costs shifting are fit for a modern justice system delivering dispute resolution digitally’.

Subsequently, Minutes of the Civil Procedure Rule Committee (CPRC), dated 12 May 2022, confirmed that a CJC Costs Working Group, chaired by Lord Justice Birss, would embark on a far-stretching review of civil costs.

Setting the wheels in motion last month, the non-departmental public body published a Consultation Paper, which outlined the scope of work to be undertaken.[i] Indeed, the Working Group’s remit is to take a ‘strategic’ approach intended to be ‘holistic’ in nature. It will not conduct an examination of the ‘fine-grained’ aspects of the areas under consideration, but will instead show interest in the ‘crucial’ interaction between the areas identified and the wider context of civil justice. This wider context has many dimensions, including ‘digitisation’, court user ‘vulnerability’ and ‘economic significance’.

The open Consultation is focusing on four key areas for possible reform:

  • Costs Budgeting – having celebrated its 10-year anniversary, should costs budgeting continue in its current form, be restricted in scope, or be abolished altogether?
  • Guideline Hourly Rates (GHR) – with limited available resources, what would be a ‘feasible mechanism’ for conducting a review of GHR every two years?
  • Costs under pre-action protocols/portals and the digital justice system – these would be governed by rules policed by an online procedure rule committee (OPRC), established under the Judicial Review and Courts Act 2022;
  • Consequences of the extension of fixed recoverable costs (FRC) – the Working Group will not ‘cut across’ the Government’s ongoing work to extend FRC for cases valued up to £100,000 by April 2023.

In reaction, Vice-Chairman of the Association of Costs Lawyers (ACL), David Bailey-Vella, commented:

‘Costs reform is moving quickly. The issues raised by the CJC are fundamental to the functioning of the civil justice system and lawyers must take seriously the reality that what they recover in costs, and how they recover it, could change radically as a result of this process. The Master of the Rolls has clearly set out his vision of digital justice and this consultation should be seen in that context. The way litigators do business will look very different in the years to come. We urge the legal profession to join us in engaging with this debate to ensure that the result is a system that is fair to all’.[ii]

The deadline for submitting responses to the Consultation is 30 September.

Thereafter, the Working Group will produce its final report with recommendations in due course.

 

[i] John Hyde, ‘Civil Justice Council kicks off “holistic” review of costs’ (1 July 2022 Law Gazette) <https://www.lawgazette.co.uk/news/civil-justice-council-kicks-off-holistic-review-of-costs/5112985.article> accessed 11 July 2022.

[ii] Neil Rose, ‘CJC begins process for major reform of costs regime’ (1 July 2022 Legal Futures) <https://www.legalfutures.co.uk/latest-news/cjc-begins-process-for-major-reform-of-costs-regime> accessed 12 July 2022.