Fix the problem rather than paper over the cracks

The case for extending fixed fees to all fast track cases is overwhelming. Access to justice is maximised if there is a defined and tightly managed process and certainty as to costs.

On 22 January 2015, we heard yet another call for fixed costs to be introduced to all fast track cases. The President of the Supreme Court, Lord Neuberger, said that:

“Fixed costs throughout the fast track was one of Rupert Jackson’s recommendations which was accepted more than four years ago.

Particularly bearing in mind the Government’s fundamental duty to enable access to justice and their swingeing cuts in civil legal aid, it is more than disappointing that after all this time, we still do not have fixed costs for all fast track cases.

Indeed, I would hope that fixed costs might be extended to the smaller multi-track cases...”

The low value protocol (LVP) for personal injury claims arising out of road traffic accidents and the LVP for employers’ and public liability claims together with the fixed fees for these cases has been a success.

The predictability and consistency that the LVPs have brought through channelling claims through a portal has enabled those claimants with meritorious cases to receive damages quickly and at proportionate cost.

The driver behind the need to introduce new LVPs and fixed fees is clear. Lord Neuberger hinted at the pressure on court resource and judicial time when talking about how the role of the judiciary has changed. He said:

“From having been a detached umpire who gave a view on the law and the facts at the end of a case and held the ring in the meantime, a judge is now a case manager, a time-tabler, a time-keeper, a rules enforcer, a mediation facilitator, a mediator, a chairman of a meeting, and a costs assessor before and after the event.

First instance judges have been, if you like, converted from guard dogs, who sat on the sidelines and only barked occasionally to warn, into sheep dogs, who continually worry away at the parties to ensure that they fall into line.”

Rather than do the consultation “hard yards” to simplify the claims process and reduce the pressure on judicial time, the Ministry of Justice have sought to paper over the cracks. In order to meet the cost of civil justice, they have resorted to asking court users to pay for it by increasing the fees across the board.

When you add this to the injustice of asking some court users to pay court fees that subsidise the provision of court services to users then this can only have a negative effect on access to justice at a time when it is most needed.

If court users are unable to meet the fees for the services that they use then society should meet the costs through taxation rather than the proposed government abrogation on to the shoulders of those who are asked to meet them at the end of a case.

After the May 2015 election, the new government should commence consultations for the introduction of new LVPs for defined claim types together with a “catch all” LVP. This would lead to a reduction in the amount of judicial time and court resource needed to manage these cases and alleviate the need to increase courts fees.

This will pave the way to vertical extension of LVPs to include low value multi-track claims up to £100,000 and alleviate the pressure on court resource and judicial time.