Not all of the proposals contained in Lord Justice Jackson’s Review of Civil Litigation Costs require primary legislation. One of the intriguing questions is the extent to which the judiciary will quietly introduce some of his ideas.
Andrew Parker, writing in the New Law Journal, said: "Anecdotally one or two County Courts are already taking steps to apply some of the ideas on fast track costs".
I haven’t had enough cases proceed to detailed assessment yet to form any view. Have any readers begun to see Jackson influencing the courts already?
An unrepresented, and impecunious Liverpool paying party (Claimant) tried arguing from the Jackson report, on appeal from detailed assessment, from District Judge Johnson. At the permission to appeal hearing before HH Judge Stewart QC, the Claimant backed up the relevant parts of the Jackson report by citing CPR 1.2 which says “The Court must seek to give effect to the overriding objective when it exercises any power [not just Case Management powers] given to it by the Rules,” and CPR 1.1(2)(c)(iv) which requires the Court to further the overriding objective by dealing with cases “in ways which are proportionate to the financial position of each party.”
Permission to appeal was denied as the Judge was of the opinion that the CPR quoted applied only to Case Management Decisions, and that the Jackson Report was not persuasive authority he needed to take into account.
During further detailed assessment proceedings (the Bill had been split into 2 parts) the Claimant was able to cite the additional CA authority of St Albans v Neary in support of the proprtionality argument (as expressed in the Jackson Report). He failed to convince the District Judge that his financial circumstances ought to be taken into account, as in Neary, since the costs order would bankrupt him.
The Claimant was a 17 year old school pupil at the time the final costs order was made against him (in Dec 2007), and a full time, impecunious student at the time of the first detailed assessment for costs of about £40,000, but in spite of that, the District Judge said that Neary could be distinguished as the facts were completely different.
Given that the trial judge (Justice KIng) heard no argument on costs (from the unrepresented 17 year old litigant) before he made the final costs order, surely the costs judges should be able to take account of the fact that, under the principles enshrined in CPR 1, the decision of the CA on costs in Neary, and the recommendations in the Jackson Report, no costs order should have been made at that time.