Continuing with our occasional series of responses to the Jackson Costs Review from the “great and the good” in the costs world is Matthew Harman.  Matthew is President of the Association of Law Costs Draftsmen, Costs Lawyer and Senior Partner at Matthew Harman & Partners. 

JACKSON – 6 MONTHS ON

The Jackson report was published amongst great fanfare on 14 January this year although it seems to have been around much longer. The report was the subject of much discussion and debate with the various conference companies reaping the benefits by putting on talks where the few who had read the whole report could pass on the key details to the great majority who had not.

From my perspective as a working Costs Draftsman there were obvious concerns about the impact of the recommendations on my day to day life. However, I have always felt that my job is one that evolves and I saw this report as another part of the evolution. Having said that, I did, and still do, have concerns for some areas of the profession. Certainly, the days of the kitchen table draftsman are numbered. However, this is more to do with the scandalous reductions in legal aid than the Jackson recommendations.

The big question remains some six months later as to whether the recommendations are going to be implemented. At the time of the report’s publication one very well connected member of the judiciary was asked the question and replied “two wars, one impending election and no money. What do you think?”

Well the election has come and gone so where are we now? A question was asked in the House of Commons on 29 June as to whether there would be legislation introduced to allow the implementation of the report. The response was typically political and could easily have been written by Sir Humphrey and went along the lines of: ‘We are taking urgent steps to consider the recommendations of Lord Justice Jackson’. Neither of the manifestos of our coalition Government included any reference to the report.

Given the massive problems that the Government are struggling with at the moment there has to be significant doubt as to whether the report will feature very highly in their thoughts save and unless the recommendations can be used to assist with the overall reduction of expenditure but even those savings would be relatively minor in the grand scheme of things.

Whatever happens I suspect that Sir Rupert will be disappointed on a personal level as he went to great pains to make it clear that his recommendations are all interlinked and should all be introduced as a sweeping change to the process of civil litigation.

My view, for what it is worth, is that some elements of his recommendations will be introduced but on a piecemeal basis. Some Judges may take elements of his suggestions and use them as part of their case management function. To an extent that is already happening. However, these are generally not amongst the key suggestions in any event and will not make a great deal of difference to life. There is also the fact that it took the judiciary two months to get their act together and appoint a Judicial Steering Group to ‘lead on judicial contributions to the implementation of the review’.

I simply cannot see that those reforms that require primary legislation will be implemented in the foreseeable future. The Government and the Ministry of Justice both have a great deal of more pressing work to get through before it will have the time or inclination to consider the necessary reforms in more detail. At least that means that the indemnity principle remains for the time being. Furthermore there are some of his recommendations which I believe will simply never see the light of day. The mooted 10% increase in general damages? Nah.

Overall then we are six months down the line and the initial interest and general furore has died down. There are less conferences talking about the report and one does not see a great deal in the legal press about Jackson. Ultimately, there are some good and sensible suggestions in the report but full implementation seems a very long way off at present.

Matthew Harman

Postscript: Since writing the above the Government, clearly having got wind of my piece, have now produced a Written Ministerial Statement on the subject. More consultation is promised but with a focus very much on CFAs and the very attractive prospect to the government of reducing costs by doing away with success fees. There is also the underlying threat of further reductions to the Legal Aid budget with promises to look at other alternative forms of funding. None of this will promote access to justice but will lead to savings for the Government.