On 3 November 2008, Sir Rupert Jackson was invited to conduct an inquiry into civil costs. It was an inspired choice. No one could have foreseen the enormous and sustained intellectual and practical work which that request would trigger. This short, cogent and exquisitely crafted book is the culmination of that remarkable effort. Here, Jackson, the architect of radical change, becomes the historian of the reform process and the sharp-eyed critic of the new costs system.
The author is a Lord Justice of Appeal and former judge of the Technology and Construction Court. He is also the General Editor of “The White Book” – Civil Procedure (2017) – and co-author of the leading work on professional negligence, Jackson and Powell on Professional Negligence, 8th ed. (2017). But, since 2009, he has been the main person associated with the topic of costs in this jurisdiction and, by extension, with procedural reform. He was commissioned in 2008 by Lord Clarke (Sir Anthony Clarke M.R., as he then was) to make recommendations for the reform of costs and funding in civil litigation in England and Wales (at [1-019], [2-001]ff.). Sir Rupert Jackson's Review of Civil Litigation Costs: Final Report (2010) was delivered in December 2009 (see [2-016]). His recommendations were substantially implemented. As a result, there have been many changes in the procedural rule book and practice of civil litigation, and these are not confined to the challenging science of costs law: for a short overview, see N. Andrews, Andrews on Civil Processes, vol. 1 (2013), [1.45]–[1.74].
In this admirably short book, Sir Rupert Jackson takes us on a brisk tour of most of the topics of civil procedure. The information is delivered precisely and with gusto. There is no padding. The subject matter is not confined to costs, but embraces disclosure, factual and expert evidence, case management and appeals. It does not claim to be comprehensive; topics such as multi-party litigation, service, interim and protective orders and enforcement are not covered. The case is made in favour of the changes which his Final Report has engendered, as well as those recommendations which have not been implemented but remain work-in-progress. The balance between detail and argument is well judged. The result is a work which is both helpful and interesting: helpful, because he explains why the current rules have been introduced and what purposes they are intended to serve; interesting, because he lifts the curtain on procedural reform. Furthermore, he dove-tails the text of this book and the further and much more detailed analysis contained in the 18 “Implementation Lectures” (see [4-016]) and the five “post-Implementation Lectures” (see [4-020]) given by him and other senior judges.
Sir Rupert Jackson does not conceal the human and personal side of this Herculean involvement in costs law: the dreadful hiatus, post-report and before implementation, when he fell seriously ill (see [4-011]); and the sweat and toil required to push through a set of inter-connected and controversial changes, especially when subject to personal attacks from those wishing to preserve their vested interests (see [4-015], [4-017], [11-015], [22-013], [22-015]).
He acknowledges his illustrious predecessors, notably Sir Jack Jacob, in his The Fabric of English Civil Justice (1987), a classic distillation of the pre-C.P.R. (1998) system presented as the Hamlyn Lectures for 1986; and Lord Woolf, in his Access to Justice: Interim Report (1995) and Access to Justice: Final Report (1996). Jackson also pays tribute to those who helped him in the otherwise lonely task of inventing a wide-ranging set of procedural changes. He is gracious in his assessment (at [1-012], [22-005]) of the substantially fruitless “Evershed report” – Final Report of the Committee on Supreme Court Practice and Procedure (H.M.S.O., Cmd. 8878, July 1953) – chaired by Sir Raymond Evershed M.R. He also notes (at [15-022]) the exciting analysis of Sir Michael Briggs (a fellow Lord Justice of Appeal), notably the blue-print for an online solutions court: Civil Courts Structure Review: Final Report (2016).
Throughout his discussion, academic comment is carefully and fairly assessed. This mature and reflective approach to academic literature is in fact one of the strengths of this book.
The subject matter is extensive, although the treatment is always incisive and succinct. It is enough to note that Jackson valuably discusses these topics: procedural development since the 1860s (chapter one); reflections on the process of reforming civil procedure (chapters 1, 2, 22 and 23); and the rise and nurturing of mediation and other forms of non-adjudicative dispute resolution (chapter 9). As for pre-commencement matters, he notes: the attempt to stamp out referral fees (chapter 17); the pre-action protocol system (chapter 8); and increases in court fees (at [23.21] ff.). On costs, he examines a raft of matters: (1) settlement offers under C.P.R. Part 36 and their costs implications (chapter 10); (2) the need to have ended the “disastrous” (at [5-010]) post-1999 system of recoverable success fees and ATE premiums under the (pre-Jackson) conditional fee agreement system (chapter 5); (3) the proportionality test for assessing standard basis costs (chapters 3 and 4); (4) the over-regulated nature of damages-based agreements (“DBAs”) (chapter 6) and the need to recognise hybrid DBAs (at [6-024] ff.); (5) other types of funding, such as legal aid, contingent legal aid funding systems, third-party funding and before-the-event legal expenses insurance (chapter 7); (6) qualified one-way costs shifting (“QUOCs”) and the possibility that this might be extended beyond the field of personal injury claims (chapter 16); (7) costs budgeting and costs management (chapter 14); here it is important to note that the “big bang” introduction of costs management across the multi-track was not Jackson's idea and that he had merely proposed a “gradualist” and discretionary use of this technique (see [14-013] ff.); (8) fixed costs in fast-track litigation and their extension to “the lower reaches of the multi-track” (at [19-033]; generally, chapter 19); (9) summary assessment of costs (chapter 21); (10) the struggle to improve the system of detailed assessment (chapter 20); and (11) costs in respect of appeals (chapter 15).
More generally, he notes: the need for better information technology within the court system (chapter 11); case management in general (including docketing: see [11-019]–[11-022]); the post-2013 saga of relief against sanctions; the revision of C.P.R. 3.9, and the Mitchell v News Group Newspapers Ltd. [2013] EWCA Civ 1537; [2014] 1 W.L.R. 795 and Denton v T.H. White Ltd. [2014] EWCA Civ 906; [2014] 1 W.L.R. 3926 decisions (at [11.31]–[11.34]); the ingenious and admirable “menu” system of documentary disclosure (chapter 12), including “e”-disclosure (at [12-022]–[12-029]); refinements to the systems of factual evidence and expert opinion (chapter 13).
There are many provocative or piquant quotations lurking in these pages. This reviewer's three favourites are: “The civil justice system exists to deliver justice to the public at proportionate cost, not to promote the contentment and convenience of lawyers” (at [14-048]); on summary assessment of costs, introduced in 1999: “For the first time – horribile dictu – even barristers were required to pay attention to costs. There were murmurings in the Inns of Court that such distasteful matters were hardly fit to be debated by members of the Bar” (at [21-002]); and “[e]veryone perceives the public interest as residing in a state of affairs which coincides with their own commercial interest” (at [22-002]).
This is an outstandingly lucid and precisely arranged treatment of civil litigation in England and Wales. It is essential reading for those engaged in procedure and for those studying it. The mystery of costs, in particular, is penetrated. To have written an incisive account of a formidably technical subject in 23 pithy chapters, which can be read in less than a day and with enjoyment, is perhaps the greatest achievement of all.
