With costs overshadowing the claims process, Lea Brocklebank argues that Whitehall must ensure that reform does not cause further problems


Over the past decade - since the publication of Lord Woolf's Access to Justice interim report that led to the introduction of the Civil Procedure Rules (CPR) - there has been wide-ranging legislative and procedural change on an unprecedented and breathtaking scale.



This has included the Human Rights Act 1998, the House of Lords Act 1999, 42 amendments to the CPR, the withdrawal of legal aid, the Access to Justice Act 1999 and the Conditional Fee Agreement Regulations 2000, the introduction of fixed costs in road traffic accident injury claims and fixed success fees in 2003, and fixed success fees in other classes of injury claims in 2005.



There has also been the introduction of the Courts Act in 2003, which amended the Damages Act 1996 and bestowed on the courts the power to impose periodical payments as a compensatory mechanism for future loss claims. Take-up has been slow on both sides, but during 2006 we saw case law develop following implementation of this legislation in the form of Thompstone v Tameside & Glossop Acute Services NHS Trust [2006] EWHC 2904 (QB). This was the first time any index other than the retail prices index (RPI) has been used for a periodical payments award and while it seems likely that the ruling will be appealed, it will be interesting to see how this case law develops in 2007. It would also seem that if other cases link periodical payments for future care costs to indexes other than the RPI, then periodical payments may be more attractive to claimants and we may see a greater take-up of them.



Looking ahead, we expect the unveiling of the Department of Constitutional Affairs' (DCA) claims-process review very soon. While it is anticipated that the DCA will consult on increasing the small-claims limit, it is also expected to consult on the claims process and whether it should be more streamlined and consensual. One of the failings of the current system is that litigation and resolving claims pre-action remains too expensive.



Costs have remained at the top of the agenda. The current system is not sustainable long term and the DCA review and the government's response will be one of the principal issues facing the market in 2007. Clearly, the system needs streamlining in terms of process, costs and economies of scale, and the Forum of Insurance Lawyers (FOIL) will be working with its members to ensure that a fairer system for all who are involved in it is formed.



It is worth reflecting that, with the exception of the 'costs wars', most of the changes we have had to contend with in the last decade have had their origins in legislation. In this forum, individual representation is ill-equipped to contend with the government and its powerful lobbies and political interests that influence it. This is where a collegiate response is necessary and organisations such as the FOIL can make a difference.



The sheer volume of legislative proposals and innovations raises a real danger that we could approach the task for a forum for delivery of justice in a confused and discordant fashion, producing yet further uncertainty. It is important that all the various stakeholders involved in the claims process co-operate in an attempt to improve a system that is not without its flaws. The government has a responsibility to promote discussion and debate for representative bodies and stakeholders to contribute and participate.



Lea Brocklebank is a partner in the Southampton office of Bond Pearce and the new president of FOIL