Social Welfare Lawyers in the Centre of Birmingham

Jackson Review of Fixed Recoverable Costs

CLP made submissions to this important review in January. Here are our submissions:

The Community Law Partnership (CLP) is a radical, progressive firm of solicitors specialising in the law relating to Housing and Public Law. CLP incorporates the Travellers Advice Team (TAT) – a ground-breaking nationwide 24 hour advice service for Gypsies and Travellers. We are 99% reliant on legal aid. Amongst other matters we: defend possession actions for tenants; assist homeless people in homeless reviews and appeals; challenge evictions of Travellers; defend possession actions taken under the mobile homes legislation; take high court planning appeals for Travellers.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 vastly reduced the scope of civil legal aid. In 2013 civil legal aid payment rates were cut by 10%. The rates were already extremely low and had not been increased for many years. In the same year new regulations meant that there was a costs risk in taking any judicial review claim unless permission was obtained (subject to a few exceptions). These changes have led to an alarming reduction in firms doing our area of work (as well as other areas of work) and led to many areas of England and Wales facing advice deserts.

In order for any legal aid firm to survive in this current climate it is essential that all possible costs are claimed. An absolutely vital part of this is the ability to claim inter partes costs when we win a case for a client and costs are awarded in our client’s favour. We note that, as long ago as 2009, Lord Hope stated:

“It is one thing for solicitors who do a substantial amount of publicly funded work, and who have to fund the substantial overheads that sustaining a legal practice involves, to take the risk of being paid at lower rates if a publicly funded case turns out to be unsuccessful. It is quite another for them to be unable to recover remuneration at inter partes rates in the event that their case is successful”

(In re appeals by Governing Body of JFS [2009] 1 WLR 2353 at 25).

If legal aid firms are prevented from claiming inter partes costs or if such costs are significantly reduced by a fixed costs regime, this will have a disastrous effect on all legal aid firms.

Fixed costs may spell the death knell for housing disrepair claims. The Law Society Gazette reported on one of the review meetings that Lord Jackson attended:

“…one claimant explained how she had been unable to live in her home for three years due to her local authority’s repeated failure to repair extensive damage from a slow leak. She had been separated from her children during some of this period and had been temporarily housed in a drugs den…The claimant’s solicitor highlighted housing disrepair as a problematic area for fixed costs, with the cost of litigation varying widely depending on which local authority the action is against…”

(Rachel Rothwell, Jackson hears from claimants over fixed costs 11 January 2017).

Additionally there is a complete lack of detail at this stage. To flag up just a few points:

  • How would one differentiate between complex and less complex cases?;
  • There seems to be a lot of scope for the other side to inflate costs knowing that their opponent is faced with fixed costs;
  • Legal aid lawyers may be disinclined to take on more difficult cases, cases involving ‘difficult clients’ or cases where the chances of success are moderate, if the opportunity to cross subsidise this work with inter partes costs in successful cases is removed through a fixed costs regime.

The Law Society have stated:

“…a ‘one size fits all’ approach for all cases, regardless of complexity, will make many cases economically unfeasible, undermining the principle of justice delivering fairness for all”

(Fixed recoverable costs review – call for evidence 13 January 2017).

Given that a very large number of clients of legal aid firms will have protected characteristics there will be a need to take account of the public sector equality duty under Equality Act 2010 s149.

If poor or disadvantaged people are unable to obtain legal representation as a result of any changes this may lead to a breach of Article 6 of the European Convention (the right to a fair hearing).

For all these reasons we feel it is clear that legal aid cases should be excluded from any fixed costs regime that may be brought in.