Recent developments in breach and causation for clinical negligence...
Dec 10 2024
Bevan Brittan Education Lunchtime Training Webinars 2024
Read MoreLord Justice Jackson hasnow published his much anticipated final report on civil litigation costs. In an attempt to improve access to justice and control costs, the report proposes changes in a number of key areas. We set out details of the proposals which will particularly impact ondisputes involving parties within the public sector.
Lord Justice Jackson has now published his much anticipated final report on civil litigation costs.
In an attempt to improve access to justice and control costs, the report proposes changes in a number of key areas. We set out below details of the proposals which will particularly impact on disputes involving parties within the public sector.
The Jackson Report has indicated that litigation should be subject to "qualified one way costs shifting". This means that even if a claimant loses, it will be unlikely to have an adverse costs order made against it. The shift is "qualified" in the sense that in deciding costs the court will take into account the claimant's means and their conduct in proceedings. Accordingly, a corporation bringing proceedings for commercial purposes is more likely to have to pay a successful defendant's costs. It is envisaged that the categories of litigation affected will be:
In the context of judicial review proceedings qualified costs shifting means that, if a claimant obtains permission to bring judicial review proceedings, then he or she is unlikely to have an adverse costs order made against them even if they lose the substantive hearing. The rationale for these changes is that judicial review proceedings are brought in the public interest and once the court has determined that a case is arguable then it would be contrary to the public interest for a claimant to be discouraged by the risk of adverse costs.
It is likely that the costs shift will not usually take place
until permission is granted, so that costs will be awarded against
unsuccessful claimants that do not get permission.
Jackson LJ has also proposed that the position is made clearer
on costs where a reconsideration is offered after proceedings have
been issued. In these circumstances, if the claimant
followed the judicial review pre-action protocol process then the
claimant will recover his or her costs of preparing and issuing
proceedings.
From our extensive judicial review experience we recognise that
most cases do not obtain permission or, if they have merit, are
settled at an early stage. It is also often the case that an
unsuccessful claimant has limited resources so cost recovery is
problematic in any event. However, when the new rules do come
in then it may encourage more challenges as the costs risk for
claimants will be reduced.
Our public sector clients are seeing increasing numbers of defamatory statements being published via electronic means, in particular on the internet.
The Jackson Report has recommended that, assuming that CFA success fees and after the event insurance premiums become irrecoverable (as outlined above), the following changes should be introduced to the current regime in an attempt to reduce the costs involved:
The Jackson Report is a vast document and sets out a wide number of proposed changes to the civil costs regime. Other proposals which are likely to be of interest to those within the public sector include:
Some of the proposals in the Jackson report will require primary legislation but the judicial review changes could be made by a straightforward change to the Civil Procedure Rules, so it seems likely that these changes will be implemented fairly quickly. It is also likely that the proposals in the Jackson Report will be relied upon in support of costs arguments before any changes are formally implemented.
We use necessary cookies to make our site work. We'd also like to set optional analytics cookies to help us improve it. We won't set optional cookies unless you enable them. Using this tool will set a cookie on your device to remember your preferences. For more detailed information about the cookies we use, see our Cookies page.
Necessary cookies enable core functionality such as security, network management, and accessibility. You may disable these by changing your browser settings, but this may affect how the website functions.
We'd like to set Google Analytics cookies to help us to improve our website by collection and reporting information on how you use it. The cookies collect information in a way that does not directly identify anyone.
For more information on how these cookies work, please see our Cookies page.