Now that we are a year into the Jackson Reforms, where do we find ourselves?
Strangely, not as far forward as we might have expected.
A combination of the staggered introduction and transitional provisions to the extended Portals (not actually a Jackson reform, but the extension of fixed fees was a Jackson proposal) mean the impact on these claims has yet to be fully felt. Nevertheless, the next 6-12 months will see a significant reduction in costs work in an area that is the bread and butter of many costs practitioners.
The impact of the introduction of provisional assessment has also yet to be fully felt with the transitional provisions stills seeing some lower value costs claims in the system. Although I undertake only a relatively small amount of advocacy at detailed assessment on an agency basis, I know there are some practitioners who undertake a significant amount of such work. They will acutely feel the loss of this work. Additionally, for those larger costs firms that have dedicated advocates for detailed assessments, the end to assessment for bills under £75,000 will have a major impact for work levels. Whether the provisional assessment scheme will ultimately be judged a success depends on whether the judiciary get a proper grip of the process. Early signs are not great.
Other than the odd judicial comment, we still have no real clue as to how the new proportionality test will be applied. Although this is no big surprise in relation to detailed assessment, because of the transitional provisions, we would have expected something to emerge from the costs budgeting process. Why no decision yet along the lines of: “I would have approved budgets of £100,000 given the complexity of the issues but I note the value of the claim is only £25,000 and I will therefore limit each party’s budgets to that amount”.
Costs budgeting is in serious danger of turning into a disaster. More judicial training is urgently needed to introduce some consistency in approach and to ensure judges understand the rules. The big problem is judges uncoupling costs management from case management. (More on this another day.)
Work on the new bill of costs format continues. All bills to be prepared at the touch of a button when this is ready?
And then we have Mitchell. I have already seen a number of Costs Lawyers and costs draftsmen Mitchelled and this will only get worse before it gets better. Professional indemnity insurance premiums are set to rocket.
If this was the end of the first year school report, the Jackson Reforms would merit the school teacher’s favourite: “Very trying”.