Review of scale costs in the Northern Ireland County Court

The Northern Ireland County Court Rule Committee (the Committee) has published an initial consultation to fixed interested parties, with regards to a 2023 review of the scale costs in the County Court in Northern Ireland. The Committee’s provisional opinion is that a fundamental review of scale costs is not necessary at this stage and instead, the review should focus at the operation of the scale costs system.

The responses to the consultation will inform the Committee’s 2023 review and feed into proposals which will be put forward in a public consultation.

Background and context

Following the 2015 review, the Committee proposed that it would consider scale costs every three years, to run from the implementation of the 2018 review. However, the COVID-19 pandemic caused significant delay to this plan.

The issue of costs is not only a ‘hot topic’ in Northern Ireland. This consultation follows developments in England and Wales regarding fixed recoverable costs and recent proposals by the Civil Justice Council (CJC) in its final report on costs published in May 2023. With regard to guideline hourly rates (GHR), the CJC is recommending:

• A retrospective uplift to be applied to the current figures having regard to the SPPI.
• Then a detailed review in approximately five years’ time (and every five years thereafter). 
• The creation of a new band for complex, high value commercial work.
• Counsel’s fees to be assessed by reference to a guideline hourly rate.
• A clearer test to be applied when considering departing from the GHR.

With regard to Northern Ireland, it is worth noting that there are important procedural differences between the high and county courts. In proceedings for both courts, the losing party usually pays their own legal costs as well as those of their opponent. While the award of costs is at the discretion of the judge, there is less scope for this in the county courts as a result of the scale or fixed costs regime.

The County Court currently has a jurisdictional financial limit up to a value of £30,000. A previous consultation launched in 2021 into the raising of this monetary limit to £60,000 or even £100,000, has not, at present, produced any change. In response to this consultation, we commented that if implemented, the reforms will result in the movement of a significant portion of cases which would have been allocated to the High Court into the County Court. The risk, if not properly planned and resourced, is that the county courts could end up overburdened with the volume of cases, thereby slowing down proceedings and ultimately impacting access to justice.

It remains to be seen whether the proposals are indeed taken forward but if they are, we believe that there is a risk of an un-coordinated approach to civil justice reforms in light of the most recent proposals in the most recent June 2023 consultation. In our view, the initial focus of the Department of Justice and Committee should be on giving the pre action protocols in the County Court some ‘teeth’.

Comment

Kennedys is working with The Forum of Insurance Lawyers (FOIL) on a response to the consultation document who in hand with other interested parties who are on the list of approved “respondees” seek to respond in a constructive manner.

Nonetheless, without a fully functioning Executive Committee and Minister of Justice, it may be some time before any changes come into force.

Related items: 

• Proposed reform of County Court civil jurisdiction in Northern Ireland – striking the right balance
• Civil Justice Council publishes its final report on costs