Action Jackson?
I don't know about you, but reviews of litigation procedure and costs just don't get my heart pumping like they used to. More than 10 years after the Woolf reforms largely failed to achieve the aims of faster dispute resolution and more proportionate costs (it did rather better on the access to justice front), it's hard to have much confidence in a solution for what ails civil litigation emanating from within the legal profession.
January 15, 2010 at 11:00 AM
4 minute read
I don't know about you, but reviews of litigation procedure and costs just don't get my heart pumping like they used to. More than 10 years after the Woolf reforms largely failed to achieve the aims of faster dispute resolution and more proportionate costs (it did rather better on the access to justice front), it's hard to have much confidence in a solution for what ails civil litigation emanating from within the legal profession.
Still, if you are going to get engaged in this topic, the much-lauded report from Lord Justice Jackson is very much the dope with the scope. And it's not hard to see why. Much of Jackson's recommendations and analysis are hard to fault. The thrust of the 557-page document is that the system has in some areas become excessively tilted in claimants' favour. This, Jackson contends, has led to abuse in certain cases, questionable behaviour from third parties such as claims handlers and has even called into doubt access to justice for defendants.
The means that he proposes to correct this, likewise, look generally sound. Ending the recoverability of success fees and after-the-event (ATE) insurance premiums (subject to a success fee capped at a maximum of 25% of damages) is a winner. The spectacle of claimant lawyers deliberately using litigation costs as a tactical weapon to force defendants to settle – and in some cases as a means of simply satisfying greed – has been unedifying and has done the image of the legal profession no favours. The banning of referral fees, as Jackson proposes, to force personal injury lawyers to compete on service and value rather than the cash they pay to middle men, also looks good.
Not all of Jackson's remedies are so easy to support. The legal profession has been talking for years about how judges can cut back needless costs through active case management. Yet there is very little evidence to suggest our judiciary has the experience, skills, resources or inclination to do so, so Jackson's call for this familiar solution won't win easy converts.
There would also be a tricky debate regarding the memorably-named notion of qualified one-way cost shifting, which Jackson calls for in areas like personal injury and defamation claims. This is an intellectually nimble bit of thinking which concludes that if you remove the need for ATE insurance – because the losing claimant wouldn't need to pay the other side's costs – you can cut costs of litigation significantly. Ergo, 'loser pays' is worth sacrificing on cost grounds in certain cases. But, as has been pointed out, messing about with the 'loser pays' tradition of litigation in this country is no minor thing and maintaining a distinction between cases where the loser really does cough up and where they largely don't may be hard in practice. And, of course, it is easy to see how such a move could still easily leave major incentives for vexatious claimants to roll the dice.
Of course, much of what is getting the commercial litigation world excited is Jackson's radical call to introduce contingency fees. Given the huge baggage that has been attached to something that can so easily be caricatured as US class action lunacy, getting that reform implemented won't be easy. But, as Jackson argues, there is a strong case for such a measure and, frankly, it's relatively easy to build in a few basic safeguards that would stop the UK ever getting anywhere near the excesses of America's claimant Bar. Commercial litigators have a major stake in such a reform happening – you could argue that contingency fees could rejuvenate high value litigation by creating a new breed of commercial litigator with real skin in the game.
There is also the minor question of how much of this will ever be enacted, as some of the most eye-catching proposals will require primary legislation and this review has happened in the dog days of the Labour administration. Time to start lobbying that local Tory MP.
For more, including reaction from the legal profession, see Jackson litigation review proposes overhaul of contingency fees.
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