The Civil Justice Council's report on funding for civil cases fails to gain wide support and could make matters worse, writes Richard Langton

Claimant lawyers have spent a disproportionate amount of time trying to recover legitimate costs over the past five years. Many personal injury firms are starting to question whether they should be involved in this work at all when payment is highly speculative in the ongoing costs war.


So the Civil Justice Council's report, Improved access to justice - funding options and proportionate costs (see [2005] Gazette, 6 October, 1), has a hollow ring where it could have restored some sanity to the situation.


The Association of Personal Injury Lawyers (APIL) is profoundly disappointed that the issues discussed in the paper were not subject to full consultation before publication.


It is disappointing that final discussions, with the possibility of unanimous support by all stakeholders concerned, appears to have been missed.


The report is focused on personal injury claims, and there are some aspects of it that APIL can support, in particular the council's position that personal injury claims have no place in the small claims court if their value exceeds £1,000.


But there is no justification for an arbitrary increase in the fast-track limit to £25,000. Such claims involve potentially significant injuries and elements of continuing loss for which the fast-track is inappropriate. They often require expert evidence from more than one discipline and the consideration of both liability and quantum becomes more complex.


The result of the review of the current predictable road traffic accident (RTA) costs scheme is still awaited. The council's proposal to extend the scheme at this stage would be dangerously premature. Though APIL gave cautious support for fixed costs in routine cases where liability is usually immediately apparent, there is no evidence that base costs in other types of case are a cause for concern.


The suggested 'tariff' database to value general damages in RTA claims below £10,000 would be complicated and, as with other tariff schemes (notably criminal injuries compensation), prove inflexible and inherently unfair. With Judicial Studies Board guidance and well-documented judicial precedent, properly motivated insurers can offer sensible settlements based on reported cases.


There are already significant and effective controls on unreasonable legal costs, and the council's suggested introduction of estimates and budgeting would be disproportionate, impractical, unfair to claimants, and likely to generate unwanted satellite litigation. With even lower-value cases made unnecessarily complex, it is impossible to predict accurately which case will fight to trial and which will settle, making budgeting impossible.


Proposals to provide benchmark costs for multi-track cases, which are even less predictable than fast-track cases, could tie the claimant solicitor's hands whenever insurers decide to out-spend victims.


APIL believes it would have been more constructive for the council to have examined outstanding fundamental issues, such as levels of conditional fee agreement/after-the-event insurance premiums, ongoing problems with legal expenses insurance, and the need to ensure there is enough insurance available to secure the conditional fee regime for the future.


Richard Langton is vice-president of the Association of Personal Injury Lawyers