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Last month, Debenhams Ottaway litigation partner Luke Harrison (and Vice Chairman of the Commercial Litigation Association (CLAN)) attended a round table discussion hosted by Lord Justice Jackson to review into the feasibility of introducing fixed recoverable costs in claims up to the value of £250,000.

CLAN press release:

The CLAN submission to Lord Justice Jackson’s review into extending fixed recoverable costs highlights serious concerns about the impact that any reforms may have on access to justice.

CLAN notes that the Competition and Markets Authority’s recent market study into legal services stopped short of mandating fixed costs because “one size doesn’t fit all”. CLAN, whose members represent clients ranging from large corporations to individuals and small businesses in “David versus Goliath” legal battles, is concerned that the proposed reforms would be felt most acutely amongst individuals and small businesses who aren’t entitled to legal aid and are reeling from recent clamp downs on no win no fee agreements which were principally aimed at the personal injury sector.

If fixed recoverable costs are introduced CLAN considers that this should only be in tandem with significant improvements in the service offered by the civil courts, particularly, the county court as well as simplification of procedural rules. CLAN also believes that any fixed costs regime should retain the ability for the courts to police unreasonable and abusive litigation conduct and ensure that well-resourced litigants cannot use their financial might to outgun their opponents.

Commenting on the Jackson’s review CLAN Vice Chairman Luke Harrison said “The vast majority of commercial litigation involves individuals and small businesses who may be litigating for the first time but will almost always be rare users of the court system. Such litigants naturally have little to no experience of litigation and often engage professional advice to help them through the process. The fact that the unsuccessful party in litigation is ordered to pay the reasonably incurred costs of the successful party is an integral feature of access to justice because it makes litigation economic to run. Arbitrary dilution of that regime, in my view, is most likely to harm those who can least afford to litigate and should be approached with extreme caution”.

CLAN’s written submission can be found on the CLAN’s website.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.