March 2017 Credit Management magazine

OPINION
RECOVERY
POSITION
Amir Ali MCICM explores Lord Justice
Jackson’s fixed recoverable cost proposals.
LORD Justice Jackson proposes that the
current regime of fixed recoverable costs be
extended to include all civil claims up to a
value of £25,000.
There have been many responses to the recent
consultation from across the legal spectrum.
In my role as chair of the CCUA (Civil Court
Users Association) I responded on behalf of
members to the consultation on the extension of
fixed costs, as proposed by LJ Jackson. I would like
to share that feedback with you.
FIXED COSTS
The membership of the Association issues more
than 85 percent of all money claims in England
and Wales. Much (but by no means all) of the work
undertaken by our members tends to be based
around procedures with fixed steps, such as debt
recovery and possession claims.
We agree that transparency is best, whenever
possible, and that such work can be ideally suited to
fixed costs. However, regardless of the type of work
and in order to ensure that there is no detrimental
impact upon access to justice, we believe that
whenever possible and appropriate, it is absolutely
essential that fixed costs should be adequate to
enable the party to recover their costs in full.
Additionally, it is clear to our members that the
cost of litigation is often unnecessarily increased by
poor behaviour by the opposing party, to the extent
that this can ultimately thwart the action and deny
justice.
CIVIL PROCEDURE RULES
The Association’s view of the Civil Procedure Rules
is that they are inspirational and utopian in the sense
that they anticipate that everybody will play by the
rules, with very little teeth if a party fails to do so. A
failure to abide by the rules by one party generally
incurs expense to the opposing party, which is often
irrecoverable.
We have considered for some time that this
should be addressed by the introduction of
transparent cost consequences within the rules,
stating clearly that if specific rules or deadlines are
Additionally, it is clear to our members that
the cost of litigation is often unnecessarily
increased by poor behaviour by the opposing
party, to the extent that this can ultimately
thwart the action and deny justice.
not followed on time and without good reason, costs
will automatically be awarded to the opposing party
for immediate payment.
We believe that this would not only benefit
access to justice by preventing claims from being
rendered uneconomic, but would also greatly speed
and assist the progression of cases, to the benefit of
the court and all court users.
SMALL CLAIMS TRACK
Such incorrect behaviour is a particular issue in
the Small Claims Track, where, of course, costs are
currently extremely limited. As the sums being
claimed are smaller, it is easier for an unscrupulous
party to render an opposing claim uneconomic.
We often hear it suggested by others that
the absence of costs in the Small Claims Track
increases access to justice, empowering litigants
in person to proceed without fear of adverse
consequences.
In our experience, any such supposed
advantages are often outweighed by litigants in
person becoming out of their depth and unable
or unwilling to seek help and advice from
professionals due to the cost involved which they
would then be unable to recover. (Or alternatively,
where an unscrupulous party can currently
behave quite disgracefully and with no intention
of generally trying to resolve the matter, with very
little risk of any adverse consequences to them.)
We appreciate that costs are theoretically
available for unreasonable behaviour under CPR
27.14, but in our experience these are rarely
awarded.
FUTURE RECOMMENDATIONS
With these points in mind, we would suggest
that extending fixed costs to the Small Claims
Track would assist both the parties and the court,
particularly by allowing claims to progress more
fairly and efficiently.
We appreciate that this may well be a
situation where the size of the debt may make
it disproportionate for such costs to adequately
cover the full expense incurred, but even a partial
recovery would be beneficial.
We additionally feel that the introduction of
transparent and immediate costs for specific
breaches of the CPR would be particularly
beneficial in the Small Claims Track, and even more
so if it is ultimately decided not to extend fixed
costs more generally within that Track.
20 March 2017 www.cicm.com
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