Impact of Jackson on Costs Lawyers
The response to the Jackson reforms has taken the classic five stages of grief: denial, anger, bargaining, depression and acceptance (although not everyone has worked through all the stages yet).
When the original reforms were first published, back in 2010, many confidently predicted that the reforms would never come to pass (denial stage) and the report would quietly gather dust, particularly as this coincided with the new coalition government with many anticipating they would have more pressing matters to worry about than civil costs reforms.
The “new” proposals for fixed costs across the fast-track are, of course, no more than what had been proposed originally. The further proposals for fixed fees for most claims with a value of up to £100,000 are more significant and far reaching than originally proposed. It is certainly true that Jackson’s original report suggested the possibility of extending fixed fees further if his initial reforms were successful, but I suspect most observers anticipated that his original package of reforms would, if implemented, take sufficient heat out of the system such that further reform would be unnecessary. We therefore now find ourselves in a much “worse” position than expected from the initial Jackson Report.
The Association of Costs Lawyers seems to have been particularly susceptible to the denial stage of the grief process.
There do appear to have been some members who genuinely believed that the Jackson reforms presented all kinds of exciting opportunities for Costs Lawyers, including costs budgeting and (apparently) the project management of litigation. In reality, it was difficult to see that any new work generated could realistically compensate for the large volume of lower value work that would disappear. It is only from the perspective of positive denial that some of the ACL’s past decisions make any real sense.
There was, at one stage, quite a lot of discussion about the ACL going to university milk rounds to promote becoming a Costs Lawyer as a wonderful future career. Post-Jackson this was difficult to justify on any level. In so far as the ACL’s primary role is to promote the interests of its members, it was not obviously consistent with that role to encourage a new group of, potentially, better qualified new entrants to join the profession just as the existing work was likely to begin to dry up. Equally, it is difficult to see how the very uncertain outlook for the costs profession could ever be honestly presented as a golden opportunity for new graduates.
The ACL has traditionally been run through the hard work of members volunteering their time (with some invaluable paid support staff). It was therefore an odd decision, in light of Jackson and with future financial pressure likely if membership numbers started to drop as a consequence of the reforms, to take on, for the first time, a paid CEO and paid Policy Officer. (Both roles have now, perhaps unsurprisingly, been scrapped.)
Again, the decision to spend, apparently, £10,000’s on a new website for the Association (that, in terms of IT input, looks like a few hours’ work) is not one that made obvious sense in a post-Jackson world.
If some of these past decisions were made during a period of collective “denial”, we can perhaps hope that an element of “acceptance” will now come to pass (even if combined with “anger” and “depression”) and the Association can now consider what it’s future will be. It certainly cannot continue as though Jackson was something that happened to other people only.