Woolf & Jackson have diluted claimants’ costs recovery, says Seamus Smyth
The Woolf and Jackson Reports have made life tougher for claimants in business litigation by (i) introducing new litigation stages whose costs are not recoverable, (ii) increasing costs overall, and (iii) substantially reducing the proportion of costs which are recoverable by successful claimants. The two reports brought significant improvements but those improvements should not blind us to their—no doubt accidental—adverse consequences. Will it get worse?
In the 1990s (before Woolf) one could, with reasonable confidence, advise a client with a commercial claim that if a letter before action were written and he instituted successful proceedings shortly thereafter, he would probably be awarded, say, 80% of his actual costs. 20% was bad enough.
Woolf woes
Woolf introduced protocols. These are expensive; the costs are likely to be irrecoverable. He promoted mediation—also expensive—the cost of which is almost certainly irrecoverable. Summary assessment of costs in interlocutory proceedings was also a consequence of Woolf. The preparation of a summary assessment schedule alone has a further cost (which is totally wasted if the court declines to assess
