So, yet another review of the civil litigation system. This time it is into costs and it is going to be ‘fundamental’. On the face of it, Lord Justice Jackson’s brief is wide-ranging. He is to look at all civil litigation from fast track to mega-case, taking into account views on case management, conditional fee arrangements, third-party funding, cost regimes in other jurisdictions, costs shifting rules and more. The review, we are told, is the judiciary’s response to the failure of the Woolf reforms to control the cost of civil justice. Do we, or should we, have any realistic hope that by 31 December 2009 Jackson and his colleagues will have happened upon the key to low-cost proportionate civil justice for all?
We keep coming back to a few consistent themes. First, with the best will in the world, complex, high-value litigation is never going to come cheap. You only need to read the recent Digicel decision on e-disclosure to appreciate the cost implications for large-scale commercial litigation. Similarly, the availability of witness statements marked up with hypertext links to the electronic bundles makes eminent sense in a lengthy trial – but at a cost. Second, how come, despite varied attempts to change the rules and behaviour of the parties and judiciary, not that much seems to have changed? We still have unmeritorious cases that run on for too long and cases that are unnecessarily and disproportionably expensive. Third, does it make sense to come up with the same solutions for all civil litigation such that perhaps the answer is to abolish the English Costs Rule? Finally, how can we maintain the reputation of the English courts as an attractive forum for dispute resolution?
