‘What!’ I hear you say, ‘wasn’t the final Jackson report on costs released on 14 January?’
Why yes it was. All 584 pages of it. But amid the headlines about scrapping CFA success fees and recoverable ATE insurance premiums, introducing contingency fees, and of course fixed costs for the fast track, for housing lawyers it comes down to a few paragraphs which largely amount to… wait and see. Here, filleted for your ease and comfort are what look like the key bits to me.
Jackson LJ notes that housing law is a hideously complicated mess (my paraphrase), that this is likely to push up litigation costs, and that the Government proposes to do nothing about it, despite the best efforts of the Law Commission.
Chapter 26 Housing Cases Recommendations 7.1
(i) The Government should reconsider undertaking a simplification of substantive housing law, as proposed by the Law Commission in 2003, 2006 and 2008.
(ii) Where a landlord could use PCOL to issue possession proceedings but chooses to issue manually, he should only be able to recover an amount equivalent to the PCOL issue fee.
(iii) The Rent Arrears Protocol should be amended in order to set out what steps should be taken by landlords, so as to comply with their obligations under ECHR article 8.
(iv) Paragraph 24.2 of the Part 52 practice direction should be amended in order to set out what categories of documents should be lodged by the respondent in homelessness appeals and when these should be lodged.
(v) Consultation should be carried out on the proposal that where a housing claim is settled in favour of a legally aided party, that party should have the right to ask the court to determine which party should pay the costs of the proceedings.
Overall, all possession claims in the fast track should be fixed costs (as most are already) but as for the right level of fixed costs, see below…
Judicial review Chapter 30: Recommendations at 5.1
(i) That qualified one way costs shifting should be introduced for judicial review claims.
(ii) That if the defendant settles a judicial review claim after issue and the claimant has complied with the protocol, the normal order should be that the defendant do pay the claimant’s costs.
Nuisance Chapter 31
Aside from the general points that there should not be recoverability of success fees or ATE insurance premiums, both civil nuisance claims and statutory private prosecutions are pretty much left alone. Of course there is no legal aid for an EPA prosecution, so any success fee would have to come out of the client’s damages as a contingency fee.
But on the big points – fast track fixed fees for disrepair claims – we are left in the dark, at least for now:
6.12 The position at the facilitative meetings. The data available at the facilitative meetings were insufficient for the purpose of producing any matrix of fixed costs in respect of possession claims or HD claims. Concern was expressed by the participants that there were so many variables that fixing costs was impossible.
6.13 Housing disrepair cases. HD cases are a matter of particular concern, because claims with a value between £1,000 and £5,000 fall within the fast track. This is the only area of litigation (apart from personal injury) where, for policy reasons, such low value claims are included within the fast track.
6.14 Possession claims. In possession claims it is normally the landlord who obtains an order for costs. In my view, there would be benefits for both parties if the costs of such proceedings (where they fall outside the regime of CPR rule 45.1) were fixed. It should also be noted that in their recent report “Turning the Tide” AdviceUK, Citizens Advice and Shelter recommend that: “The Ministry of Justice should consider introducing a fixed fee regime for mortgage possession claims”.
6.15 Professor Fenn is currently exploring the possibility of obtaining further data on housing cases. He anticipates completing this exercise and providing an analysis of any such data by 31st March 2010. Subject to what the data may reveal, it is my intention to invite the submissions of both landlord and tenant organisations upon that data before recommending any matrix of fixed costs for fast track housing cases. I hope then to be in a position to recommend a matrix of fixed costs for possession claims and HD claims, drawing on the advice of the Senior Costs Judge and the CJC.
6.16 In recommending any matrix of fixed costs for housing cases, there are two matters which I shall take into account. First, lawyers who specialise in housing depend upon recovered costs in cases which they win, in order to cross-subsidise their other activities. This is because much of the work of those solicitors comprises providing advice and assistance to clients on legal aid. Legal aid rates for advice and assistance have fallen far behind inflation in recent years, although the move to standard fees may have allowed for some efficiency savings. The second matter is the availability of solicitors firms and law centres which are willing and able to undertake housing work in areas where tenants need their services: see PR [Preliminary Report PDF] paragraphs 31.2.6 and 31.5.1. It is important not to set fixed fees at a level which exacerbates that problem.
6.17 An alternative approach to low value housing disrepair claims. An alternative approach to low value HD claims might be to set up an ombudsman scheme to deal with such claims. This is the sort of area where, traditionally, ombudsman schemes have proved highly effective: see “Civil Justice in England and Wales – beyond the courts. Mapping out non-judicial civil justice mechanisms” by Dr Magdalena Tulibacka. If such a scheme is introduced and proves successful, it might then be possible to make £5,000 (rather than £1,000) the boundary between the small claims track and the fast track. This would bring HD claims into line with all other litigation apart from personal injury claims. This is not a recommendation which I make, because the proposal was not canvassed in the Preliminary Report. It is simply a matter which I raise for possible future consideration.
So, this boils down to ‘there should be fixed costs for disrepair (and possession) but we have no idea what those costs should be. We’re going to try to get some more data and tell you in a few months.’
Actually getting the data, with sufficient detail and comparison points to make it of use in the statistical number crunching, will, I humbly submit, be a nightmare. This is simply not a standardised production-line field, unlike say fast track PI. Even if the detailed figures, end points and outcomes can be obtained, I suspect (on a purely anecdotal basis, obviously) that there won’t be a neat pattern with a few outliers.
This might, just maybe, be the sound of fixed costs for fast track disrepair running out of steam as a practical proposal. Or I may be being ludicrously hopeful.
And of course, the report was commissioned by the Judiciary – the Master of the Rolls. Whether the MoJ take it and implement some or all is another matter entirely.