The judge tasked with implementing the Jackson reforms has said five years will be needed to assess whether they have worked.
As the first anniversary approached of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) coming in to effect, Mr Justice Ramsey conceded that there have been ‘teething problems’ with the process, but insisted ‘we are not seeing a disaster, as there could have been’.
Sir Rupert Jackson’s reforms overhauled funding arrangements for cases, case management and costs budgeting. Ramsey told the Modern Claims conference in London last week that lawyers were having to adjust to a change of culture but that it is ‘the transitional element which has caused the most problems’.
Ramsey confirmed that the government has started a review of a key facet of the new regime, damages-based agreements, to include hybrid arrangements.
On referral fees, which were banned in personal injury cases last April, Ramsey conceded that new business models had been set up ‘outside of regulation’ to bypass the ban. On the 10% uplift in damages to offset the abolition of success fee and after-the-event insurance premium recoverability, the High Court judge said some settlements still fall ‘somewhere near the old figures’.
Ramsey insisted that the judiciary’s approach to costs management will remain consistent with last year’s severe Mitchell ruling on non compliance. ‘If there is a non-trivial breach then you have to have a good reason for not complying,’ he said.
In his first public statement on the reforms’ progress, Jackson predicted that the old regime of uncontrolled litigation costs would be seen as ‘absurd’ in future years. ‘There has been a learning curve and this costs money,’ Jackson said. ‘It takes time for costs management to bed in. Both practitioners and judges need to become comfortable with the process.’
Jackson said opinion is divided on the main issues of the reforms and admitted some unpopularity was inevitable.
‘Every stakeholder group seems to perceive the public interest as residing in a state of affairs which coincides with its own commercial interest,’ he said.
Meanwhile, lawyers called for cuts to civil legal aid introduced through LASPO to be reversed. The act removed public funding for the majority of private family, immigration, housing, employment, debt, prison and education cases.
Particular problems cited by practitioners include: the rise in numbers of litigants in person; the under-use of the exceptional funding scheme, with only 35 of the 1,151 cases granted funding; the fall-off in mediations; and inadequate protection for domestic violence victims.
Legal Action Group director Steve Hynes said that efforts to fill the gap, such as pay as you go, fixed fee and web-based services, are welcome, but inadequate.
‘It’s a national disgrace. We’ve had a year of austerity justice and that can’t continue – the electorate won’t stand for it,’ he said.