The Sheffield and District Law Society are opposed to the increase of a blanket raise to the level of fixed costs in Civil Claims to £250,000 as our paramount view is that it will impede access to justice. It is our fear that it will hinder access to justice as it will create a blanket upon cases, treating Claimants the same as each other, as though they were bringing claims in the same area of law, having to use the same resources. No two civil cases are the same regardless of the mechanism that brings them to the Courts.
It will obstruct access to justice to the lay person and will create a David and Goliath approach to commercial disputes. Those with money and resources will think nothing of fixed costs as much as they think nothing now. However, those with lower cash reserves and the lay person will be affected.
We believe it will create a hierarchy of solicitors in the profession and a greater extent of underselling to the public in order to cut corners to meet fixed costs. For example, cases in Clinical Negligence often fall under the £250,000 bracket, however these can be some of the most complex and legally entwined cases that come before the courts. They involve the use of multiple experts and often successful cases can provide care and services not met in the community. This can be said for many other areas of civil law.
There is a real concern that the costs will be fixed too low, that experienced lawyers and firms will pull out the market as they will be priced out of the market. Senior Partners have suggested that they are concerned that it will drive salaries down and they will lose talented lawyers to other areas of law. We want to ensure that there are enough skilled lawyers in the market to safeguard access to justice. Limits on costs to those cases that fall within the remit of this proposal may make such claims harder and harder for those firms to run. Inevitably, it will become a deskilled area, as can be seen in low value general Personal Injury, as firms struggle to make a profit
In injury cases, the Courts should remember that based upon the average earnings in the United Kingdom a person can be out of work for 5 or 6 years by their injury and their case would still not fall outside the fixed costs regime. In Clinical Negligence claims the Clients issues often go far beyond the level of compensation, for example in cases of fatal claims, such as baby deaths, the level of support required to bring a claim, goes far beyond the pre action protocol and time is spent in ensuring that Claimants are properly supported.
Whilst measures do need to put in place to check that costs are proportionate to damages, that problem is already adequately addressed by costs budgeting and by detailed assessment, in which it is possible to take a proper case by case approach to whether the facts of a particular case and its complexity justify the costs incurred. To introduce a blanket proposition denies the facility to consider that issue on a case by case basis. It will inevitably lead to a removal or at best severe restrictions on access to justice to the most vulnerable.
The Sheffield and District Law Society endorse the National Law Society proposition should a fixed costs regime up to £250,00 be introduced in respect of civil cases:
- the recoverable fixed costs should usually only apply to non -complex claims, where the issues are likely to be straightforward
- the costs must be fixed at a reasonable rate for the work done and to allow for the work to be carried out effectively and efficiently by properly regulated professionals, such as solicitors
- there must be scope for exemptions and escapes for complex or unusual cases
- there must be rigorous empirical evidence and research undertaken to justify the initial setting of the rates, as well as the level of thresholds
- the rates and thresholds must be regularly reviewed and increased by reference to appropriate indices
- court procedures and court rules should be properly aligned with their introduction, and
- appropriate and efficient IT should be introduced in the court system to support the fair and effective delivery of any new fixed costs regime’