UK: Fixed Costs In Litigation – Why We Need To Fix The Civil Court System To Reduce Costs In Litigation

Last Updated: 16 March 2017
Article by Luke Harrison

If Lord Justice Jackson is to implement fixed costs reform for cases in the lower echelons of the multi-track this needs, in my view, to take place simultaneously (or after) wide sweeping reforms have to be made to the civil courts. 

In his review on the civil court structure published in July 2016 Lord Justice Briggs acknowledged Jackson's view that changes to the civil court structure would be necessary as part of the package of costs reform. He said "His general approach, which he has been kind enough to share with me in outline, is that he regards the pursuit of an extended fixed costs regime, the further development, improvement and streamlining of costs budgeting and costs management, and the introduction of modern IT into the process of costs assessment as all working alongside the introduction of an Online Court as measures which contribute in a complementary way, rather than in competition, to the provision of an effective overall remedy for the adverse effects upon access to justice constituted by the continuing disproportionality between costs and value at risk in large parts of the workload of the civil courts." 

But what are the drivers of costs in the civil courts? What changes need to be made to stamp them out and has Briggs gone far enough in his recommendations? In this article I won't be looking at the procedural codes of the civil court system but rather focusing on the way in which the civil courts operate. 

Much of lower value litigation in the multi-track takes place in the county court. Recent cuts and supposed efficiency moves have led to a fragmented county court system. Money claims (essentially any claim for a financial remedy) are issued centrally out of the Northampton County Court (which incidentally operates from Salford), known as the 'Money Claims Centre'. When defences are filed cases are transferred to either the defendant's local court (if the defendant is an individual) or the court chosen by the claimant. These reforms have, in my view, worked well to cut the volume of work undertaken by local county courts around the country. 

Problems arise, however, once a case is transferred into a county court. County courts have no way of gauging the number of cases that will come to them and so managing staff workload is extremely difficult. This could be resolved by working out each county court's capacity levels and ensuring that cases are allocated more evenly on transfer. Such a system requires an understanding from the Money Claims Centre of the existing levels of business being undertaken by each county court and an effective system of archiving / case closure in county courts so that case volumes are accurate. 

The centralised 'helpdesk' for the county court system is also an oxymoron. Often described by practitioners as the 'unhelpful desk' its staff, who are also centralised, can do little other than read off pre-prepared scripts, provide basic information on procedure and information from the centralised computer system. Calls to the helpdesk by practitioners and litigants often involve chasing the progress of applications or some other aspect of a case that is awaiting court or judicial intervention. It is all too common for the helpdesk to inform a practitioner or litigant that a file is with a judge with no further information being proffered. What this often means is that the file has been checked out but this doesn't actually necessarily mean that something is happening. There are frequent requests from practitioners to reconstitute the court file because it has been lost. Practitioners also have the impression that more complicated applications or issues are put to the bottom of the judge's work pile. Unlike the High Court it is rarely possible to speak face to face to court staff as many county courts simply have a 'drop box' facility. 

Correspondence to the county court also often goes unanswered. The courts bemoan practitioners chasing them for a response as it adds to their workload yet they fail to acknowledge (save for automated an email acknowledgement) correspondence or indicate any timescale in which the correspondence will be addressed. Again chasing sometimes yields no fruit but other times it is the chasing that reveals that the file has been lost. 

Cases are often adjourned. The court regularly lists cases from the small claims track to the multi-track in bulk lists hoping that some of the cases will settle. When they don't, practitioners receive a call, often a day before trial, to advise that the trial is to be relisted "due to lack of judicial availability". In the last two years I have seen two trials out of maybe four or so that I had conduct which were heading to trial in the county court adjourned this way. These two cases were adjourned twice with one of the cases specifically listed on what Birmingham County Court called a "must heard basis". 

Cases often get adjourned at the hearing because the judge "doesn't have enough time to deal with it". These adjournments, granted, occasionally lie at the door of the practitioner who has failed to adequately estimate the time required for the hearing. However, they sometimes arise out of an earlier overrun or where the judge hasn't had sufficient pre-reading time or because the opponent 'ambushes' the hearing with late submissions of evidence. Such adjournments are all too common in cases where one party is a 'litigation in person' (LIP). 

There is a tendency for the courts to reserve judgments following trial. Judgments are supposed to be handed down within a reasonable period of time (Article 6 of the European Convention of Human Rights) but often take several months. In simple cases the handing down of a reserved judgment involves a further attendance at court, further sets of submissions for consequential orders and the associated preparations. Oral judgments (judgments ex tempore) delivered immediately following trial would greatly reduce the level of costs involved. They have the advantage of enabling the parties to make submissions to consequential orders on their feet and reduce the time lag for resolving litigation.  

The way in which the court conducts the business of litigation can have significant impacts on the level of costs a party incurs. Delays in processing claims, when the ball is in the court's court (if you pardon the pun) can involve several hours of practitioner time chasing the court, updating and explaining the situation to the client and dealing with the opponent over the issue. Adjournments of trials and hearings are particularly costly. They result in abortive or increased counsel fees and further preparatory costs for the hearing. Judges ought to be encouraged to deliver more ex tempore judgments. In my view these issues need to be incorporated into a package of reforms if the cost to clients is reduced. Briggs acknowledges in his report that this is an issue which the MoJ and HMCTS don't recognise, "This subject remains a matter of real concern, not least because it has yet to be agreed at senior judicial level, or within HMCTS or MoJ, that this is in fact a weakness in the structure of the civil courts at all". 

More worryingly Brigg seems to view problems in the court system as London and High Court centric (see paragraph 8.2 of his report) whereas they are pervasive, in my experience, throughout England and Wales. Granted Central London County Court may be renowned for being particularly problematic, but in my experience regional county courts (Watford, Birmingham, Luton etc.) have similar issues. The answer is not, in my view, to push work out of the High Court and into the county but to (a) properly equip the county court for its expected workloads (b) set a base level of defined service levels and (c) manage performance against those service levels. 

I am due to meet with Lord Justice Jackson this month at a round table meeting as part of his consultation into fixed costs reform. Feedback from practitioners and users of the civil courts would be much appreciated. Please email any comments to

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions