Leading industry figures get their heads together on Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
To fair Victoria where we lay our scene, set in what the master of the rolls described as the glamour of the Grosvenor Hotel. To such a place did 70-odd cognoscenti of civil justice reform come for five and a half hours of ‘unglamorous’ topics, as they were described by Lucy Frazer, QC, MP and parliamentary under-secretary of state at the Ministry of Justice. The entire event, which started the review of LASPO Part 2, like most Civil Justice Council events, was slightly surreal but more so on this occasion for dystopian references to The Architect (Rupert Jackson).
There was a good turn-out by representatives of the Law Society of England and Wales Civil Justice Committee and Civil Litigation Section, together with two past presidents of the London Solicitors Litigation Association (Francesca Kaye and the author). Peter Causton, the recently elected council member for civil litigation, was also in attendance.
In an event likened to a civil justice reform boot camp only the brightest ideas survive. But by what criteria should contenders for bright idesa be judged? The only credible touchstones are those ideas which benefit the greatest number. Judged by that test here are my top five ideas from the day:
1. Kerry Underwood – settlement advice
Kerry urged the application of a feature of settlements in employment law to the personal injury field. The practice had grown, he said, of independent legal advice being required to endorse settlements reached by employees in person which advice is paid by the employer. Such an approach, he believed, would address one challenge facing litigants in person in personal injury cases after the increase in the small claims limit.
2. Deborah Burke – streamlining the process
Debbie urged the streamlining of the process to which too little attention had been paid. As one who sat on the New Bill of Costs Committee with her, I wholeheartedly agree. Process has a direct relationship with costs. Perhaps this lesson has been too little acknowledged in the civil justice reform of recent years.
3. Professor Rachael Mulheron – damages-based agreements
The thrust of Professor Mulheron’s thesis was that these infamous regulations should be repealed and started afresh. She made the incisive comment that much would be helped by the introduction of an express right to pursue the restitutionary remedy of quantum meruit. The ministry did not consider that the regulations should be reformed but this is a characteristically innovative suggestion from Professor Mulheron that is worth considering when the ministry comes to reconsider the regulations, as they surely must.
4. Tim Wallis – online
Tim drew attention to the urgent need for IT in the civil courts. He specifically drew attention to the provision in the US and elsewhere. States such as Ohio and Florida are now developing online dispute resolution systems today because they implemented efiling, mostly, around 2006. As we know in 2006 we in England and Wales were looking forward to using Electronic Filing and Document Management. Sadly, the Treasury withdrew funding and we are now more than 10 years behind many of the states in the US.
5. Jonathan Sachs, Professional Negligence Lawyers Association – qualified one-way costs shifting
Jonathan drew attention to the absurdity of QOCS being available to healthcare professionals but not professionals advising medics in clinical negligence disputes. An overwhelming case was well made for correcting an obvious oversight of the reforms.
Has the time come?
In a speech to the Insolvency Practitioners Association in Whitehall in 2016, Sir Rupert Jackson said that ‘the time had come for fixed recoverable costs’ and that may be so. But had the time come to review reforms which have barely begun to take effect? John McQuater from the Association of Personal Injury Lawyers treated us to an illuminating history of the Great North Eastern Railway which, he suggested, was an apt metaphor for civil justice reform. In his view, all the reforms from the late 1990s onwards were slowly being unwound – no more recoverable success fees was but one of his examples. Just like the East Coast mainline service had returned to the great name of GNER he saw civil justice reform heading in the right direction, backwards.
Francesca Kaye observed there had been too much focus on personal injury at the event and too little attention paid to commercial litigation. This was certainly true. To redress that Mr Justice Knowles, chairing the event, urged the specialist associations to engage with the review and invite members of the ministry to events at which a debate could be had around the issues raised by the review. As a past president of the LSLA, I have no doubt the association will be among the first to accept this invitation.
Robert Wright, Ministry of Justice
Robert’s concluding remarks welcomed the contributions during the day he gave a fulsome appreciation of the work carried out by the council on this and with so many other pressing issues of the day.
Whither the review?
You can participate in the review via an online survey. The closing date is 24 August 2018.
Tony Guise is a former member of the Civil Justice Committee of the Law Society of England and Wales and was invited by Sir Rupert Jackson to be the Society’s representative on the New Bill of Costs Committee.