Law academics slam Jackson’s civil justice proposals
An independent panel of law academics has branded Lord Justice Jackson’s proposals to reform civil litigation costs as ‘misleading and ‘inconsistent with a fundamental principle of civil justice’, as it published a report today.
The 11-strong panel, chaired by Bristol University tort law professor Ken Oliphant, concluded in its response to a government consultation on the proposals that there would be ‘an adverse impact upon access to justice’ if they are followed.
The panel said that the proposals would reduce the availability of legal services to injured persons, and benefit defendants at the expense of the injured.
It also said that Jackson’s report would ‘effect major changes in the civil litigation system by a process of questionable legitimacy, in which a single judge was left to determine issues of significant political and social consequence on the basis of evidence very largely supplied by one party to a long-running and polarized debate, with insufficient independent verification’.
The panel criticised the report as paying insufficient attention to ‘alternative and potentially superior’ methods of controlling civil litigation costs.
The panel comprises academics specialising in the law of civil liability for personal injury, and labour law.
Meetings of the panel were sponsored by national firm Thompsons, which was not represented on the panel, and did not exert editorial control over the panel, the report said.
The government has generally accepted Jackson’s recommendations to abolish the recoverability of after-the-event (ATE) insurance and success fees, and to raise general damages by 10%.
However, putting forward its proposals in a consultation paper, the Ministry of Justice suggested ATE premiums should continue to be recoverable insofar as they relate to the claimants’ disbursements, and that the 10% increase in general damages should apply only in cases funded by conditional fee agreements (CFAs), and be paid as success fees to solicitors.
The academic panel recommended that the government should reject Jackson’s key proposal to allow lawyers to recover success fees from an injured person’s damages.
It said that the government should appoint a commission of inquiry, with representatives from all stakeholder interests, to gather and assess evidence about the costs of civil litigation.
The panel recommended that insurers should provide unimpeded access to case files, subject only to redaction necessary to maintain the anonymity of persons concerned.
The report said: ‘The Jackson proposals are inconsistent with a fundamental principle of civil justice – the principle of full compensation for wrongful injury – because they entail the “raiding” of damages recovered by successful claimants to pay for their legal costs.
‘They would be the beginning of a slippery slope towards ever-greater inroads into the compensation to which injured persons are legally entitled.
‘The Jackson report presents a misleading and partial account of the problems requiring solution, because it too frequently treats anecdote and opinion as if it were fact, and systematically prefers the evidence of the defence lobby over that favouring injured persons.
‘What evidence is available suggests that the Jackson proposals, if implemented, will have an adverse impact upon access to justice, because they favour the financial interests of defendants over the interests of claimants in getting effective legal advice and assistance and proper compensation for their injuries.
‘Additionally, they will reduce the availability of legal services to injured persons, because legal and practical limits on what lawyers can charge will inevitably cause them to turn away clients they represent under the current system.
‘Overall, the Jackson proposals will benefit defendants at the expense of injured persons, because some injured persons with claims that are currently recognised will find it impossible to find a lawyer to represent them, while those who do get legal representation will generally have to pay for it out of their damages.
‘Those with serious injuries are likely to be the biggest losers. Additionally, the level of damages recovered is likely to be adversely affected by the unpredictable incentives in the proposed regime, and health and safety [will] suffer because of the reduced legal sanction for dangerous practices.’
Comments
It is all very well slamming
It is all very well slamming Jackson's proposals but, frankly, without using contingency fees how else can you reduce the inflated costs created by CFAs?
http://www.lawthink.co.uk
Justice Jackson - CFA's
As a defendant in a Civil Litigation case that has been going on for 6years, we were very pleased to hear that Justice Jackson had realised how wrong a success fee was in such cases. We do not think that his reforms have gone far enough to protect people like ourselves. We have never wanted to be involved in this case we are entrapped in and it was taken to Court over a disputed amount of £12,000. Due to the costs that have escalated in this case, should we loose at Court, we are looking at loosing around £200,000, maybe more, due to the fact that a CFA's is involved and due to the extortionate success fee that could be placed up on. We are a normally family going about our everyday life, with a below average income and we will loose our home and everything we have if we loose the case. It has already cost us any savings that we had. How can if be right that solicitors get a success fee, sure if they take on the case as a risk, they should CFA's? This has ruined our lives. What is more, we have done nothing more than purchase a defective product and had the weight of a huge solicitors company and CFA against us!
So another lot of clowns who
So another lot of clowns who know best how to sort the litigation mess!
Litigation has been interfered with so often that the whole process is no longer about delivering justice between the parties but how to run up costs and then who should pay. The academics, judges and every other damned fool who has given the "answer" has done nothing more than create an unholy mess.
Jacksons proposals seem to have the merit of simplicity and attempting to keep costs down.
These fools witter on about "raiding damages"! It was always the case that the winner didn't get full costs-it was called taxation of the bill.
God help us when we are in the hands of this lot!
Why in God's name don't they
Why in God's name don't they just abolish inter-partes costs and go over to the USA system (and the ET system) of each party paying it's own fees (whether hourly rate or % fee).
I've always been amused at the bleatings of PI/ClinNeg Lawyers about their oh-so "deserving" clients - many hundreds of hours meticulously prepearing the most detailed schedule of loss (down to the next £1 needed for the carer's auntie to buy a Xmas card for the Claimant), only then to find the Judge knocking off a very un-scientific 25% (and why not 26.8356%) from the damages for contrib fault...
Doh....!!
Academics??
Well, lets face it, we would not have been told anything about this great panel of acedemics if they were in favour of Jackson would we? In any event, are we really bothered what the "academics" think. Why are they teaching, as opposed to practising, law?
nahhhhhh....better than
nahhhhhh....better than commenting on websites
No surprise there
A panel sponsored by Thompsons slams Jackson's conclusions!
Costs
They should simply make all Personal injury whether defendant or claimant on CFA and success fees only. If the case settles without proceedings to court then predictive costs is all successful claimant's are entitled to. I can guarantee a huge drop in cases personal injury cases going to court. Defendant solicitors are the winners no matter what the outcome they get paid so if they delay cases they get paid more for the work they have done, so they keep making more and more vexatious litigation, taking every issue with someones case who claims compensation.
Jackson is WRONG!!! There is
Jackson is WRONG!!!
There is no rule or authority whatsoever (CPR, case authority or otherwise) requiring a loosing party in civil litigation to have to pay disproportionate costs, expect where an order for costs to be assessed on the indemnity basis is made.
It is only the masses of call-centre insurance kids, or clue-less Defendant Costs Negotiators who continue to pay disproportionate costs. Any civil litigation loosing party who has proceeded to detailed assessment (or indeed who has read the costs rules) will soon realise that there isn't a District or Costs Judge in England and Wales who does not know how to deal properly with a claim for disproportionate costs (Lownds v Home Officfe etc)
Everything is fine - let's carry on with our lifes.
Absolute
Absolute rubbish!
Disproportionate costs are awarded all the time. In fact, this is encouraged by the success fee nonsense.
More often than not the costs grossly exceed the sum being litigated. A pure gravy train for the litigation industry (certainly not a profession)-ties in quite nicely with why lawyers are disliked.
And no the judges are useless at controlling it-in fact the greater the money involved the more important the case and therefore the more publicity the judge gets! An absolute disgrace!
You appear to be confusing
You appear to be confusing ecomonics (cost benefit ratio etc) and standard basis costs.
Under the CPR, standard basis, proportionate costs, are those that are proportionate to the issues. The logic being that, if the defending party wishes to oppose a reasonable claim "tooth and nail", there is still equality of arms/ a level playing field.
If Jackson's fixed costs are introduced (and even more so if recovery of additional liabilities is stopped), the defending party can still oppose a reasonable claim tooth and nail (if he/ she so wishes), but the Claimant only has limited/ fixed resources to deploy in response. Therefore, if introduced, fixed costs would put Defendants at a considerable advantage over Claimants, in litigation, and, as a consequence, access to justice would be denied.
If you think this is "absolute rubbish", quote your authorities, rather than ranting than a clueless fool.
So there should be no
So there should be no cost/benefit analysis?
What about where the claimant is not reasonable but has more money than the defendant? They can still claim a success fee when they win by sheer financial might.
How is that justice?
The costs of litigation are far too high-simples!
But under the standard basis
But under the standard basis of assessment, only costs which are reasonably incurred and which are reasonable and proportionate in amount are recoverable inter partes.
Therefore, if the Claimant acts unreasonably, then the costs of that unreasonable conduct are not recoverable (this is well established).
Exactly. I'm also left
Exactly. I'm also left shaking my head when the first settlement offer is made in the days leading up to trial. All the defendant has to do is make a decent part 36 early on. They then needn't worry about disproportionate, or indeed most of the costs. Simple!
Personal injury...
It is clear to everyone that civil litigation in general and personal injury litigation in particular now has one main focus, costs generation - recovery of damages is very much a secondary consideration. As costs are now far more of an issue/driving force than damages, only those on the make (ie the personal injury claims industry - claims farmers, trade unions and claimant PI firms) are in denial. Bring on the reforms!
It is typical to post these
It is typical to post these comments without considering the reasons why. You cannot keep taking away the heart of a profession without it looking at ways to generate an income lost through failed consideration of the so called ministry of justice.
Evidence
Every side to this debate had the opportunity to put in evidence to support their position. It's no surprise, therefore in the absence of evidence from claimants that Sir Rupert reached the conclusions he did - costs are disproportionate by a significant factor. Claimants be in the form of APIL, large union firms or the specialist personal injury practices all had it within their means to provide data but failed to do so. Sir Rupert received data from the defendant insurers and public authorities but most of all he had data collected by judges upon which to base his conclusions.
For those reasons I do not believe one way can dismiss the effort and sheer intellect behind the Jackson report and the fact the government accepts the body of work and recommendations therein is to sir Ruperts credit
Jackson Report
Why not allow the likes of Jackson control the amount a lawyer can charge for a reasonable claim made, not possible in other industries. When I need a dentist or specialist opinion, I pay the going rate, it is a restraint on trade to fix fees on all cases not least because professional people command proper fees. The control of costs should be a specialist judges function. The senior court costs office needs to be rolled out country wide and in no time at all, the problem will be fixed. The assessment of costs should not be a judicial function conducted by aged judges who are often far from familiar with the turmoil which can be encountered in a typical case, often no issues arise but where they do and a success is achieved, proper fees should be recovered. Clients should not be asked to pay or even contribute to the cost of recovering damages when a defendant denies, delays or even typically refuses to deal with the claim timely, if at all
That said, ate insurance is too expensive and should be capped or assessed on the basis of proportionality, likewise success fees should be reduced unless they can be properly justified on a case by case basis. In other words fixed with discretion to exceed the fixed scale in appropriate cases.
"...it is a restraint on
"...it is a restraint on trade to fix fees..." - that would presuppose that an actual market exists in respect of rates for personal injury work. Because of the nature of CFAs/ no-win no-fee agreements there is no market force prevailing upon the rates that Claimant solicitors set with their clients who are not the party who eventually pays those rates. The same issue lies with ATE premiums and this is the root issue that Jackson seeks to tackle.
If Jackson comes in there
If Jackson comes in there won't be a reduction in costs. Part of the costs will just move from defendant (well their insurers) to injured victims. Claimant lawyers will continue to clean up, more so in higher value cases. Getting over a 25% success fee on the current rules are few and far between. I believe 2/3 of cases attract the 12.5% success fee (RTAs settling pre trial). Just watch the Daily Mail headlines when some poor employee is put in a wheelchair because of a greedy employer cutting corners, or pedestrian suffers a brain injury when some drink driver runs him down, only to see his lawyers take hundreds of thousands out of his award. I can see the headlines now. Oh and when the damages run out several years early due to the shortfall who will pay for his ongoing care, medical treatment, home adaptations, etc. That'll be the state! Only insurers profits are the winners in all this.