The Jackson reforms undermine the most important principle of achieving fairness for victims of injustice. That is to ensure that the victim is returned to the position they would have been in but for the wrongdoing.
Damages-based agreements will permit a direct deduction from damages. Success fees and the premium for any after-the-event insurance will also be deducted, leaving an irrecoverable shortfall. Necessarily and reasonably incurred costs will not be recoverable if disproportionate, resulting in a further shortfall.
How is this fair? The idea that a 10% increase in general damages will somehow compensate the victim amounts to misconceived maths and in practice is likely to have little impact. Solicitors will be placed in direct conflict with their clients over the level of these deductions and their slice of the damages. Referrals to the Legal Ombudsman will inevitably increase. The restorative concept of justice and the reputation of practitioners will be irreparably damaged.
Peter Hatvany, Parker Bullen, Salisbury