Most litigators will advise a client in a civil action that, if successful and barring issues as to proportionality and behaviour, a party and party costs order is the likely outcome against a losing opponent. Forty-plus years of experience suggested that it was prudent, nevertheless, to remind our clients that assessment invariably produced a recovery pitched at between 75%-85%, the remainder down to solicitor and own client costs.
Post-Jackson, the perceived wisdom is that the judiciary has now become the willing handmaiden of the political desire to drive down lawyers’ fees to the bone, with average recoveries now ranging between 40%-60% and dropping. Even indemnity costs no longer recompense the winner. It is not just criminal lawyers who are fighting to preserve reasonable income; the target is civil lawyers too.
Sadly, now that public funding has all but disappeared from the civil forum and remains seriously under threat in the criminal sphere, access to justice will henceforth be solely in the province of the seriously wealthy. Most supplicants will be litigators in person without now, it appears, recourse even to judicial review of the establishment. Orwell only got one thing wrong – the date.
David Kirwan, senior partner, Kirwans, Merseyside
