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30 January 2017
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ACL tells Jackson: It’s too soon for a radical extension of fixed costs

ACL tells Jackson: It’s too soon for a radical extension of fixed costs

  • Some areas of litigation cannot be made ‘one size fits all’, say Costs Lawyers
  • Other reforms must come first, as must proper data collection
  • Jackson’s own 2013 reforms have controlled excessive costs


It is too soon for a radical extension of fixed recoverable costs (FRCs), the Association of Costs Lawyers (ACL) has told Lord Justice Jackson, and in any case there are several areas of law – from clinical negligence and defamation, to actions against the police and judicial review – where their introduction may be unfair and unworkable.

In its response to Lord Justice Jackson’s call for evidence, the ACL said the proposed Ministry of Justice reforms to personal injury claims need to be in place first “before it is possible to consider how further changes to the regime would operate effectively”. The modernisation agenda for the courts could also have a major impact on costs.

“Further, there is a strong argument to suggest that an extension of the FRC regime at this time would be undertaken before the impact of the existing regime – which is barely three years’ old – has been assessed,” it said.

The ACL – whose members work at the frontline of costs – said: “Active case and costs management is proving successful in prospectively restricting many of the excesses of litigation that lead to high legal costs and the post-LASPO test of proportionality, with its increased stringency, is retrospectively penalising parties who present unreasonable costs claims.”

The association expressed concern that FRCs could make it uneconomic for foreign companies to litigate in England and Wales, which would be a “grave risk” given the economic uncertainty engendered by Brexit.

“Our members accept that extensions to the FRC regime may follow over time. However, it is vital there is consultation with all stakeholders who use the court system to ensure that any extension will be consistent with the key tenet of all recent reforms – namely access to justice – and will provide fair and proportionate remuneration for the work done to promote such access.

“If an FRC regime is introduced at the wrong level and without fair remuneration, there must be a real concern that litigants will not be able to access the correct level of legal expertise without bearing much of the cost themselves, thus potentially creating an inequality of arms.”

The ACL stressed the importance of a major data collection exercise to ensure that an FRC scheme is applied to the correct categories of cases and at the right level. It said there have already been talks with the Law Society and others about pooling such data.

This exercise would assist in identifying patterns and identify categories of litigation that are not appropriate for FRCs because they do not follow a standard pattern of expenditure/process, and where introducing FRCs could end up short-changing parties and prove unworkable with a multitude of opt-outs and exemptions. These include clinical negligence, actions against the police, defamation, judicial review, and class/group actions.

Simon Murray, chair of the ACL’s fixed costs working group and CEO of specialist costs law firm NeoLaw, says: “The ACL’s membership is drawn from all sides of the legal profession, as was the working group.

“The overarching concerns of the membership are that if there is to be any extension to FRCs, timing is key and the level of fees must be informed by meaningful data provided by all of the key stakeholders in the legal industry. Moreover, it is extremely unlikely that a ‘one size fits all’ system will be achievable and so a tailored approach to the various classes of action will be required.

“In our opinion these issues are of the utmost importance to ensure access to justice is maintained.”


For further information, please contact: Kerry Jack, Black Letter Communications

Tel: 020 3567 1208,

Notes to editors:

Association of Costs Lawyers

The Association of Costs Lawyers (ACL) is a membership body representing and promoting the status and interests of Cost Lawyers in England and Wales. Founded in 1977, the Association was granted authorised body status in 2007 and is a front-line regulator, able to authorise its members to undertake the reserved legal activities of litigation and advocacy. In recognition of this new-found status, ACL changed its name from the Association of Law Costs Draftsmen in 2011. Costs Lawyers are regulated by the Costs Lawyer Standards Board.

The term ‘costs draftsman’ denotes an unregulated and unqualified person operating in costs and those who instruct costs draftsmen have no recourse to either the Legal Ombudsman or the Costs Lawyer Standards Board.


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