Access to justice and the costs of litigation are items high on the agenda for the States, the judiciary and the legal profession and are currently the subject of review and consultation. Out of that, the Court has recently taken a further step to bringing efficiency to the litigation process and to facilitating the speedy recovery of costs by a party who succeeds at a hearing prior to trial.
Before it gets to a full-blown trial in front of the Royal Court, a civil claim will almost invariably involve contested applications heard by lower-court judges known as the Royal Court Master or Judicial Greffier. For instance, those applications might concern the disclosure of documents or applications to strike out parts of the claim. The costs of those interlocutory battles can rack up. The 'taxation' process, by which the amount of costs recoverable by the winner of the particular battle would historically be assessed, could itself get quite expensive and complex, with the parties waiting a long time for a conclusion. Ultimately, the winner of an application could have found themselves out of pocket for a long time.
By a new practice direction effective from 5 January 2015 [https://www.jerseylaw. je/Courts/PracticeDirections/Display. aspx?url=RC-15-03.htm], in connection with contested hearings before the Master/ Greffier lasting not more than one day the rules have changed inasmuch as the judge is now under an obligation immediately to assess the amount of costs to be awarded to the winner, unless in all the circumstances he considers it would be inappropriate to do so (and one may expect the 'unless' exceptions to be rare). Parties who hope or expect to win must go armed with and be ready to justify a summary schedule of the costs they intend to claim, otherwise the judge may take a failure to do so into account when dealing with costs. Although this summary assessment procedure is much abbreviated as compared with the taxation regime, the Master/Greffier will have regard to taxation principles when deciding the amount of costs to be awarded.
It must be acknowledged that the new practice direction does not establish a summary assessment power for the first time: a similar one for interlocutory hearings before the Master/Greffier was introduced by earlier practice direction in February 2009 and, more generally, the Royal Court has the power to assess costs summarily at the invitation of the parties. But up to now those powers do not seem to have been much deployed: the February 2009 direction was watered down as compared with the new one, requiring the Master/Greffier merely to consider whether to make a summary assessment and, in practice, such assessments were uncommon.
The new practice direction ought to enable winners to recover costs much more quickly and easily. Further, and as apparently intended by the Royal Court Rules Review Group, the now clear and present threat of summary assessment may further deter litigants from bringing unnecessary applications.
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