Consultation on Part 46 of the Civil Procedure Rules:
Fast Track Trial Costs
Response of the London Solicitors Litigation Association
The LSLA is over 50 years old and represents the interests of a wide range of litigators in London handling a broad range of civil and commercial litigation. Through its 950 solicitor members and strong links with a wide number of professional bodies, it represents nearly all civil litigation practices in London. The LSLA operates through a Committee of some 15 members which includes members of the Civil Justice Council, Civil Procedure Rule Committee, Law Society Civil Litigation Committee and local Law Societies. The LSLA has a particular interest in the mechanisms for setting and reviewing scales of fees and costs which affect its members and wishes to respond to this consultation.
The LSLA has had only very limited time to canvas the views of its committee, having first learned of the consultation paper on 19th April. The views of members are not entirely in agreement – see below – but there is a broad acceptance that fixed fees as a concept should involve review and where appropriate increase.
The LSLA would ask to be added to the list of usual consultees held by the Department on matters relating to the legal profession and Civil Procedure Rules, particularly those where the consultation period is likely to be shorter than recommended by Cabinet Office guidelines
Question 1 - "Do you agree that the fast track trial costs should be increased in line with inflation?"
The LSLA agrees that fast track trial costs should be increased in line with inflation. In general terms where fees for work are fixed, there should be inflationary increases provided that the basis for setting the fixed fee has not changed.
Question 2 – If you agree, should the costs increase in line with the Retail Prices Index? If not please set out your reasons why and indicate whether you prefer the Private Sector Average Earnings Index or another Index.
The LSLA’s committee members were not able to agree on this issue. The majority preferred Private Sector Average Earnings Index, arguing that the principal inflationary cost affecting solicitors’ practices was the cost of salaries, which self-evidently rose in line with AEI. However the contrary view expressed was that the Retail Price Index was the more reliable measure of inflation over time for a range of goods and services, whilst AEI had a number of weaknesses as a measure of the cost of services.
Some thought should be given to the frequency of changes. Costs for lawyers’ practices do rise annually and therefore there is an argument for annual increases. However in the context of fast track trial costs, these may produce small annual changes and it may be simpler to have changes say every three years and an appropriate rounding of the inflated figure.
Question 3 – Do you agree that the new rules should apply to all trials that take place on or after the date of implementation?
Again there was a range of views but the majority was against the proposal and in favour of an alternative of increases only applying to cases issued after the implementation date. Litigants in fast track cases will have budgeted for the cost of trial on the basis of the existing figures and may face an increase, albeit modest, at a relatively late stage.
In general terms such changes involving cost to litigants should not be retrospective if this is possible to achieve. There have been similar occasions (for instance the introduction of fixed recoverable costs under Part 45) where changes have not been made retrospective.
Regulatory Impact Assessment
We would also comment in passing that the Regulatory Impact Assessment is flawed, as it is based only on cases issued for a specified amount. The Department’s own Judicial Statistics show that where cases proceed to trial, those issued for an unspecified amount outnumber fixed amount cases by about 4 to 1.
London Solicitors Litigation Association