Damaging Review of Civil Litigation Costs
Lord Justice Jackson's recommendations about legal costs in his report published yesterday attack, as predicted, the soft target of personal injury claimants. In a report which will be a delight to the insurance industry, Jackson seeks to set the personal injury clock back over 10 years during which time we have seen victims of personal injury being able to assert their rights against those causing injury by negligence without risk of loss or injustice.
If the Jackson recommendations are implemented, those solicitors firms such as Boyes Turner, who act ethically and guarantee that their clients can exercise their rights without fear or cost and without deduction from proper compensation will have to change their practices. If implemented, clients will lose part of their compensation to legal costs or will have to take risks that they are absolved from under the present rules in bringing forward their claims.
The current rules were brought about over a decade ago by a Government anxious to remove personal injury claims from eligibility for legal aid. Now Lord Justice Jackson suggests changing those rules but, of course, without bringing back legal aid. A double hit then for the injured.
Here is the text of the response from the Association of Personal Injury Solicitors of which Boyes Turner is a member and with which it associates itself:
“While Lord Justice Jackson’s report pays lip service to the importance of ensuring victims of personal injury are properly compensated, in reality there is very little in it which helps injured claimants.
An emphasis on the cost to defendants of litigation misses the point that it is the defendants who generate claims through their own negligence. Claimants do not ask to be injured and, when they are, defendants and their insurers routinely erect every barrier possible to prevent them claiming the compensation which they need and to which they have a right.
The claim that ending recoverability of success fees and after-the-event insurance premiums will lead to cost savings is highly misleading. The costs will still be there. They will just shift to the claimant who will have to pay success fees and insurance premiums out of his damages. And under Sir Rupert’s proposals for one-way costs shifting, the claimant will either pay for an insurance premium out of his damages, or risk paying for expenses such as medical reports and court fees if he loses the claim. None of this is the case under the current system which works on the ‘polluter pays’ principle.
The proposal to increase general damages by 10 per cent to offset the cost of success fees is a white elephant for two reasons: damages are now too low in any event, as, in most categories, they have never been increased in line with the minimum 50 per cent increase recommended by the Law Commission ten years ago; secondly there is a real risk that the proposed increase will not cover the cost of the success fee in any event, leaving the injured person with a shortfall in his damages.
The proposal to extend fixed costs will only serve to shift the playing field even further in the wrongdoer’s favour as it will severely hamper the injured person’s ability to conduct a thorough case. The Ministry of Justice is about to introduce a new system of fixed costs for lower value road traffic cases which will encompass the vast majority of claims and this should be allowed to settle down and be monitored before we even think about further reform in this area.”
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.
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