Initial reaction to Lord Justice Jacksons review of civil litigation costs varied from wholehearted welcome to condemnation as a threat to access to justice.
David Cooper, council member of the Association of Costs Lawyers, said Jackson was right to recommend that any extension to fixed costs be implemented in a careful and measured way. ‘It is tricky to strike the balance between ensuring that litigation is not prohibitively expensive while also making it economic for lawyers, and Jackson LJ appears to have had that at the forefront of his mind is putting forward a balanced package of reform.’
Jonathan Wheeler, managing partner of loss and injury firm Bolt Burdon Kemp said: ’These proposals could have been much worse as far as access to justice for claimants is concerned. It seems that Lord Justice Jackson really has listened to the concerns of many since he started his review. I am heartened that the efforts of claimant’s representatives have been recognised for their work in attempting to negotiate a system of fixed costs in low value clinical negligence claims with the Department of Health. Lord Justice Jackson gives the green light to those efforts, and recommends that that work continues outside his fixed costs regime.
’The recommendation to bring in an intermediate track where issues are relatively simple, and the value of the claim is less than £100,000 could work. One must always fix the process before fixing costs and not allow well resourced defendants to game the system, driving up costs by their behaviour which they can afford but a claimant cannot. I hope the government listens to the learned judge, and consults more widely with all of us to ensure that in the face of further reform, checks and balances are in place to protect the vulnerable litigants that we represent.’
However, campaign group Action against Medical Accidents said that Jackson’s report did not recognise the complexity of many cases of less than £25,000 – the majority of clinical negligence claims. ‘Included within this are very serious and complex claims including stillbirths and child deaths; negligent neglect of older people and claims for people with mental health and learning disability problems. Clinical negligence claims are far more complex than personal injury claims and imposing fixed costs – no matter how long and inappropriately the claim has been defended – means that many of the claims will not be feasible.’
Daniel Frieze, barrister at St John’s Buildings, said: ‘These fixed costs proposals run the risk of denying many claimants access to justice – a topic particularly relevant following last week’s Supreme Court ruling on employment tribunal fees. There is the prospect of specialist solicitors in complex cases leaving the market due to the fixed fees, leaving those with lower incomes unable to access the best legal help.
‘Time will tell whether the suggestion of an intermediate track up to £100,000 will provide the necessary access to justice for the most vulnerable. Even with a fixed cost regime, there will inevitably continue to be disputes.’
However the Medical Defence Union (MDU) described the proposals as a missed opportunity to make claimants’ legal costs more proportionate to compensation paid. Dr Matthew Lee, professional services director said: ‘Patients who believe they have been negligently harmed must have access to justice, but fixed costs are fairer and could, and indeed should, be applied to all cases valued at up to £250,000. In lower-value claims, claimant lawyers’ fees are still, on average, above the level of damages awarded and that cannot be right.
‘The rising tide of litigation is having a dramatic effect on the medical profession and the NHS more widely. The current system makes no sense and creates too many perverse incentives. It needs root and branch reform.’
Predictably, the claimant and defendant sectors had polarised opinions. Stephen Hines, vice president of the Forum of Insurance Lawyers, said: ‘The extension of fixed costs represents an important step forward in the continued modernisation of the civil justice process. The streamlining of the civil process envisaged by Sir Rupert, together with other on-going procedural reforms, has the potential to significantly improve access to justice at proportionate cost. FOIL called upon the government last year to press ahead with its commitment to extend fixed costs to as many claims as possible and hopes that work can begin quickly to take forward the recommendations. Looking to future developments, Lord Justice Jackson calls for a collaborative approach to develop fixed costs proposals for clinical negligence and for multi-track claims in general.’
Gerard Stilliard, head of personal injury strategy at Thompsons Solicitors retorted: ‘Fixed costs reduce access to justice for injured claimants and thus suit insurers; the lower those costs are the more it suits the insurance industry. Insurers successfully upended Jackson’s proposals on the level of fixed costs before and there will now be intensive insurance lobbying to turn the screw on the level of costs in this extended regime.’
Brett Dixon, president of the Association of Personal Injury Lawyers (APIL) said: ‘We are not opposed to fixed recoverable costs so long as the processes are designed to fix the amount of work involved. It is sensible to allow specialists from both sides to negotiate a scheme for lower-value clinical negligence cases and we welcome this recommendation.’
However he added: ‘We note that proposed intermediate track appears complex and that there is no suggestion of a pilot for personal injury, which could be dangerous. The real issues will, of course, come out in the detail of implementation.’
By Michael Cross, The Law Society Gazette – 31 July 2017