While it is agreed that civil litigation should be faster and more cost-efficient, Colin Ettinger says the claimant could ultimately be the main loser


In a speech at the 2004 Law Society conference, Fraser Whitehead expressed concern that 'civil litigation is over-lawyered and too expensive' (see [2004] Gazette, 21 October, 8). He added, and I would not disagree: 'We have to strip down our job in the process to what it is really about - defining rights, enforcing rights and securing rights. Put another way, giving advice, making the claim, ensuring the result and deal is fair.'



Mr Whitehead also criticised a system that has resulted in 'professional complacency' and 'over-focused on top-line performance and legally perfect systems'. It seems to me he has failed to take the whole picture fully into account.


The pre-action protocol has led to a significant improvement in the way personal injury cases are conducted, and litigation has fallen as a result. Costs of litigation should be adequately controlled by the Civil Procedure Rules, which require that the only costs recoverable are those incurred necessarily and proportionately. And there has recently been the introduction of predictable costs in relation to road traffic cases.


Additionally, the Department of Work and Pensions is likely to launch shortly a pilot scheme for handling employers' liability claims. If successful, it should result in a slicker and more cost-effective system.


My real concern is that this drive towards efficiency and cost-saving may well result in an injustice to claimants. If the system which is ultimately presented is 'stripped down' to such an extent that it becomes uneconomic for lawyers to take these cases on, we will be left with the position where the only practical way for claimants to achieve access to the courts is by representing themselves. This would have a devastating impact on the ability of injured people to gain full and fair compensation.


In a recent survey for the Department for Constitutional Affairs into the effects of raising the small claims limit, Professor John Baldwin states that he 'has for a number of years held the view that the main problem or dilemma in expanding the scope of the small claims procedures is that the litigants, however passionately they may feel about the legal rectitude of their position, need legal advice before hearing about the validity of their case in law'.


He continues: 'It is unrealistic to expect lay people to know how they should go about establishing the legal basis of their case effectively at a court hearing unless they are given preliminary advice about how they should do so'.


Further research on the impact of the small claims procedure on personal injury litigants was carried out by Elaine Samuel for Legal Studies Research. In it, she observes: 'Where court proceedings are conducted in accordance with the normative expectations and adversarial system, the justice to which unassisted personal injury litigants have access under small claims procedure may be perceived as hollow.'


Research in Scotland found that many claimants 'felt intimidated by the court and... usually specialist reparation lawyers acting on behalf of insurance companies'.


I agree with Mr Whitehead that we must have a faster, slicker system, but not at the expense of the claimant. Too often, when considering the improvement of the personal injury system, financial considerations take precedence over access to justice.


The proposed increase in civil court fees, the Better Regulation Task Force recommendation that the small claims limit should be increased for personal injury, and further threats to legal aid are just three examples of where the interests of the claimant do not even appear to have been taken into account.


This trend must be reversed and reversed now, so that the claimant is put at the top of the agenda.


Colin Ettinger is president of the Association of Personal Injury Lawyers