Do lawyers need better costs management training?

Current civil procedure awards introducing proportionality to costs have been in place for more than two years, but uncertainty around the issue has prompted many lawyers to call for reforms. Now, one of the UK’s leading judges has argued that the problem could simply be down to a lack of training.

Speaking to an audience in Jersey, master of the rolls and head of civil justice Lord Dyson noted that all judges have received training on the Jackson reforms, which were introduced back in April 2013, and called for the wider legal profession to receive similar instruction.

Simply put, introducing new reforms – such as those governing civil litigation funding and costs – is about more than just changing the previous set of rules and hoping everyone will adapt.

Lord Dyson argued that this is more true of the legal profession than in many other sectors: “Many lawyers tend to be rather resistant to change. They prefer the comfort zone of the familiar. Effective implementation of procedural changes requires the courts and the legal profession to understand the nature of the reforms and their rationale.”

The reforms brought about a host of changes. Referral fees were banned in personal injury cases; in no-win, no-fee cases, additional costs are no longer paid by the losing side; claimants’ damages were protected; and a new fixed recoverable costs regime was introduced. Since their introduction, lawyers have also been forced to draw up a costs budget at an early stage in the proceedings.

However, many in the profession have called for new reforms to be brought in, citing confusion over the way the rules are implemented and the sanctions for failing to adhere to them. This prompted a swift rebuttal from Lord Justice Jackson, who last month insisted that the measures are not going anywhere.

“The new regime is in the public interest and is here to stay,” he said at a meeting in London. “Why then do quite a few lawyers dislike it? Because it means more work and requires people to develop new skills.”

“The civil justice system exists to deliver civil justice to the public at proportionate cost, not to promote the contentment or convenience of lawyers.”

Lord Jackson claimed that costs management will be widely accepted as an “entirely normal discipline” within a decade, although he accepted that the system as it currently stands has not been implemented perfectly and admitted there is scope for further change.

His comments were echoed by Lord Dyson, who stressed that the system was being monitored in a bid to flag up any unexpected problems or unintended consequences. What’s more, he emphasised that a “dogmatic, still less an ideological approach” is not the key to a successful implementation.

Despite some initial teething problems and room for improvement, he insisted that the Jackson reforms – unlike the Woolf reforms, introduced a decade earlier – had benefited from being based on proper data, rather than anecdotal evidence.

“I would hope that, like the Jackson costs review, any future reform in England and Wales is based on hard evidence,” Lord Dyson added.

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