It is often said that high legal costs can impede access to justice. If the costs of bringing a case are too high, a party may refrain from bringing an action or a defendant may decide to make a settlement for economic reasons.

Conversely, writes Ernest J Cantillon (principal at Cantillon’s Solicitors), low costs and delays in recovering costs can discourage solicitors from taking a case. Thus, he argues, some people could be denied access to justice that they might otherwise, perhaps, have obtained.

Positive developments

Two recent developments have the potential to ease the situation, Cantillon suggests. The first arose out of the DePuy hip litigation, which has been case-managed by Mr Justice Cross. In the course of that litigation, an application was made to Mr Justice Cross to provide a form of practice direction providing for an interim payment of costs, pending taxation.

While Mr Justice Cross declined to make a practice direction, he indicated that at the conclusion of each DePuy case, he intends to direct the payment of costs pending taxation of a sum determined by the trial judge. Notwithstanding the fact that Mr Justice Cross refused to grant an order bringing in a practice direction, DePuy has appealed this matter to the Court of Appeal.

Since this ruling, the President of the High Court, Mr Justice Peter Kelly, has issued practice direction HC71. As a result, solicitors can now seek an order directing payment of a reasonable sum on account of costs, pending taxation.

Writing for the Gazette, Cantillon sets out the context and implications of these rulings in detail.

• Read the full article in the May 2017 Gazette

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