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.’