The latest worrying development in civil litigation is the suggestion by Lord Jackson to bring in fixed fees recovery for claims of up to £250,000.
In the article published by the Law Gazette he even suggests a grid of rates dependant on the value of claims.
In my view, fixing costs based upon value will have a significant impact on access to justice. "Civil litigation" covers a wide variety of cases, often with a large number of issues to be considered and determined.
The value of a claim does not necessarily affect its complexity. This misunderstanding goes to the heart of the proposed reforms.
It also goes to the heart of Lord Jackson's view on proportionality.
In most civil litigation claims I have dealt with, proportionality is overridden and affected by the:-
1. issues in dispute (not the value);
2. commercial factors at risk; and
3. attitude of your opponent.
How can fixing costs on the basis of value properly cover and compensate a party for these issues? I suspect the answer will be that it cannot.
Who will loose out? I suspect solicitors and their clients alike.
There are already many risk factors in litigation (particularly with the removal of ability to recover CFA uplifts and after the even insurance premiums from opponents). Adding this new change might make it even less attractive which, in turn, could affect access to justice.
At a speech in Westminster, he even went as far as to suggest a grid of rates – minus disbursements and VAT – for each value of claim: £18,750 for claims up to £50,000; £30,000 for claims up to £100,000; £47,500 for claims up to £175,000, and £70,250 for claims up to £250,000.