Is a fixed costs evangelist the right person to lead a review?

Today’s announcement that Lord Justice Jackson is to lead a review of fixed costs brings the classic 1980s TV series Blackadder to mind. Specifically, the 'goes forth' episode where the pigeon gets shot and General Melchett, the pigeon’s owner, oversees the murder trial. The outcome is a formality.

Of course LJ Jackson is no Melchett. He is a respected and fair-minded judge, and his integrity is not in question. But given Jackson's long history of involvement in this issue many will ask if he is the right person to lead a review of fixed recoverable costs. 

In January this year, Jackson gave a speech, available on the judicial website, calling for the introduction of an ‘extensive regime of fixed costs’ for civil litigation, arguing the time was now ‘ripe to take this substantial step’.

Today’s announcement brings to mind General Melchett in Blackadder

He stated: ‘High litigation costs inhibit access to justice. They are a problem not only for individual litigants, but also for public justice generally.’

Jackson said fixed costs should be limited to claims worth up to £250,000, with the more expensive ones controlled by costs management.

This wasn’t just Jackson floating a few ideas into the air: he had costed every element of litigation and split claims into four bands. This looked like a serious attempt at creating an entire regime.

So is this self-confessed devotee of fixed costs really the best man to encourage a swathe of different opinions?

Whether or not Jackson is for turning from his January position, his appointment in the first place will inevitably give the impression of a done deal. Opponents of the idea will inevitably ask why they should waste precious hours submitting a response when they could be using that time to rack up litigation costs. 

There are good arguments for fixed costs, and Jackson is obviously someone whose opinion should be sought. But if variable costs were sitting in the dock, I wouldn’t fancy their chances right now.

John Hyde is Gazette deputy news editor

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