Will the next costs war be the 'battle of the bands'?

Published 18 octubre 2021

On 6 September 2021 the Government finally published a response to the consultation on the so-called 'Jackson 2' reforms. Sir Rupert Jackson made a series of recommendations to extend fixed recoverable costs in 2017, with a public consultation in 2018. Blaming delays caused by the coronavirus pandemic, the Government has finally confirmed its support to adopt the recommendations as ‘uncertainty of costs hinders access to justice, while the certainty of costs set at a proportionate level enhances it’.

The main recommendations as supported by the Government are as follows:

1. The introduction of fixed recoverable costs across the civil fast track, rather than just for cases involving certain personal injuries.
2. The introduction of a fixed recoverable costs banding system for 'intermediate' cases worth up to £100,000.
3. A bespoke system for Noise Induced Hearing Loss cases.
4. Introduction of costs budgets for 'heavy' Judicial Reviews.

The indication is that mesothelioma/asbestos, ‘complex’ personal injury and professional negligence, actions against the police, child sexual abuse and intellectual property cases will be excluded. It remains to be seen exactly when any of these changes will be implemented, with the next step being handed over to the Civil Procedure Rules Committee.

Implementation is to apply to cases where the cause of action arises after the implementation date or in the disease scope cases, the date of any letter of claim. It seems unlikely that such a significant extension to fixed recoverable costs could be in place before October 2022, perhaps more likely not until 2023. The Law Society and Association of Personal Injuries Lawyers have called on the Government to have a ’rethink’ and have publicly criticised the proposals. However, the Government’s support for the extension of fixed recoverable costs comes as no surprise.

There will now be a great deal of scrutiny to the criteria set for the different bands especially for intermediate cases. It is a surprise that the Government has expressly refused to issue any further criteria on how cases should be 'banded' as the banding will dictate how much can be recovered. By leaving such a contentious issue to 'the parties and judges to come to sensible conclusions on' might well herald what many are predicting to be the next costs war.