The government should curb Lord Justice Jackson’s recommendation to expand the use of fixed recoverable costs, limiting them only to the fast-track, according to the survey of Costs Lawyers carried out at the National Conference.
Some 155 members responded to the poll and just over half (52%) of them said it was ‘fair enough’ to extend fixed costs across the fast-track, but that they should go no further. This was in part because, as the judge himself acknowledged, the costs budgeting process has improved significantly over the past 18 months. Some 57% said his optimism matched their own experience.
However, the survey also showed that solicitors needed to up their game. In findings largely in line with previous ACL surveys, just 5% of Costs Lawyers said their clients always stuck to their budgets; 65% said they sometimes went over, while 29% had clients who always exceeded their budgets. This was a major problem in light of the Court of Appeal’s ruling in Harrison that said a costs judge on detailed assessment should only depart from the approved or agreed budget if there is “good reason” to do so.
The survey also highlighted once more the lack of applications to update budgets. Just 19% of Costs Lawyers said the number of applications to update a budget was increasing, while 38% said they had never seen one.
The survey said there was growing awareness among solicitors that the new electronic format of the bill of costs becomes compulsory next April, but 40% Costs Lawyers thought that, however good it may be, solicitors were not interested in the shift.
Most Costs Lawyers viewed government reform as the main threat to the future of the profession. The large majority thought they would weather the Jackson reforms, even if some would take a hit initially.
ACL chairman Iain Stark (pictured) said: “Costs Lawyers know better than anyone that budgeting is becoming embedded in civil litigation and it will only keep on improving. It is true that many solicitors still need guidance but, with judges now far more confident in exercising their costs management powers, we are positive that it will make a real difference in controlling costs.
“That being the case, do we really need the upheaval and satellite litigation that fixed costs would cause as lawyers push for the highest fee available? They work on the fast-track because solicitors can cope with the ‘swings and roundabouts’ of having some cases that require more work and others that require less than the fixed cost allows. However, that calculation does not work with more complex cases.
“Costs Lawyers have an interest in maintaining budgeting, of course, but as a profession we have worked hard to make the process work and, while there is still some way to go, we are proud of what we have achieved.”