I have just finished reading Lord Justice Jackson's impressive report on civil litigation costs (see [2009] Gazette, 21 May, 14).

I write as a personal injury solicitor of some 25 years’ experience, having acted routinely for both claimants and defendants. I believe I have an insight into the workings of the existing personal injury regime.

Jackson’s mastery of detail is remarkable, but certain fundamental issues may become lost:The personal injury regime we have in this country may not be perfect but for the general public and the reasonable defendant it works – and it works well.

  • From the claimant's perspective, the existing personal injury regime generally works very well. A claimant of any means can pursue a worthwhile personal injury claim at no costs risk to himself and in the knowledge that, in a huge majority of cases, he will retain all of the damages to which he is properly entitled. The whole purpose of the ‘access to justice’ reforms has been fulfilled. The innocent injured claimant can be put in the position he would have been had the defendant not been in breach of duty. From the claimant's perspective, if the system ain't broke, why fix it?
  • For defendants, high costs are largely a self-inflicted injury. Defendants already have the means to control excessive costs: comply with the protocol, admit liability early and make reasonable offers. No claimant's lawyer will readily ignore a well judged Part 36 Offer. The defendant industry, however, is so beset by inefficiency and a culture of attempting to under-settle any claim, that resolution is unnecessarily delayed. It seems to be forgotten that the existing costs regime can benefit a defendant as much as it can a claimant. A defendant who beats their own Part 36 Offer at trial will recover their costs from the date of the offer. Equally, a defendant whose defence of the claim was justified, and who is successful at trial, will recover their costs in full from the claimant by virtue of ATE or BTE insurance.
  • The misuse of Colossus (which in itself could be a useful tool if fairly applied) is endemic in the insurance industry as the parameters are set well below the true ‘market value’ of awards for general damages.
  • Amid the mass of statistics, there is no evidence that the other western litigation regimes referred to achieve the primary objective of providing access to justice for all, at no cost to the consumer, while at the same time putting the cost of bad or inefficient behaviour back on the responsible party.

Peter Jones, Smith Jones, Kenilworth, Warwickshire