A round-up of responses to the Jackson Review Consultation

Valentine’s Day 2011, normally a day of romance but for ARAG and many other organisations and companies it signalled the end of the consultation period for the Ministry of Justice’s Proposals for reform of civil litigation funding and costs in England and Wales.

The proposals are based on recommendations from Lord Justice Jackson’s Review of Civil Litigation Costs (December 2009), in which he puts forward “a coherent package of interlocking reforms, designed to control costs and promote access to justice”. Some of the recommendations contained in the consultation paper include:

• Introduction of qualified one way cost shifting
• Abolishing the recoverability of after-the-event insurance (ATE) premiums and success fees
• Increasing general damages by 10%

The responses from across the industry have been submitted and it is now a waiting game to see how the government proceeds. In the meantime, this blog summarises a selection of the responses.

• Consumer Justice Alliance (CJA): The CJA describe the proposals as “misguided and ill-considered”, as they feel that they will “ultimately hinder the ability of injured victims to seek fair and reasonable access to justice”. More specifically, the CJA believe that it would be unfair to shift costs onto the injured victim and worry that capping success fees will mean it is not “commercially viable” for law firms to take cases with lower prospects of success. They also add that “there is no alternative that provides the certainty for claimants or defendants that a robustly regulated ATE market does”. Read more...


• Legal Expenses Insurance Group (LEIG): As laid out by Tony Baker, LEIG’s director, "the LEIG response will to preserve access to justice by putting forward practical alternatives to Government proposals while delivering significant and proportionate cost savings." Reiterating that there is only a ‘perceived’ compensation culture; the group propose a revised ATE system that will “control claimants’ and defendants' costs, maintaining access to justice, reducing unmeritorious claims, solving the disbursement conundrum, and preserving the ATE market”. Read more...
  
• Independent panel of law academics: Reported on the Law Society Gazette website, an independent panel of law academics described the proposals as ‘”misleading and inconsistent with a fundamental principle of civil justice.” They point out that they “would reduce the availability of legal services to injured persons, and benefit defendants at the expense of the injured.” Ultimately, the panel recommend that the “government should reject Jackson’s key proposal to allow lawyers to recover success fees from an injured person’s damages.” Read more...


• Medical Defence Union (MDU): According to Post Online the MDU are backing the Ministry of Justice proposals to reform civil litigation costs, claiming that they will “make the civil justice system fairer but will not impact a patient's access to justice.” Representing medical professionals, the MDU state that they “wholeheartedly” support the proposals that tackle “excessive and disproportionate costs, without affecting the ability of patients to seek compensation when they have been negligently harmed.” Read more...
  
• Association of British Insurers (ABI): The ABI is backing Jackson’s proposals stating that it is “time to put the brakes on the legal costs gravy train that is costing UK consumers £2.7 million every day.” They describe how, in their opinion, “high legal costs are at the heart of a compensation system that is too slow, too complex and fails too many genuine claimants.” The ABI believe that Jackson’s proposals will “deliver faster, fairer, more cost-effective compensation and care to those who need it.” Read more...
  
• Access to Justice Action Group (AJAG): “Access to justice for ordinary people will be severely curtailed by the proposals” reports AJAG’s press release which outlines its response. Citing their consumer survey, the AJAG Co-ordinator notes that “the biggest fear people have when enforcing their rights is the risk of legal costs.” Therefore they present a “comprehensive package that both maintains access to justice and helps keep costs down.” Read more...

As a member of the LEIG and CJA, ARAG of course support their responses to the consultation. However, with the view that the proposals will negatively impact access to justice ARAG also submitted their own response.

• ARAG maintain abolishing success fee recoverability would “have a catastrophic effect on injured victims” as “any deduction of damages would result in a victim receiving an unfair settlement”.


• As an ATE insurer ARAG know first-hand how valuable this cover is to claimants and have serious doubts that qualified one way cost shifting will “be sufficient to remove the other side’s costs risk.” They point out that insurance will still be needed to plug the gap but that few insurers could “respond to providing such limited forms of cover.” Additionally, the premium may have to increase and it will still be taken from the claimant’s damages producing “a significant barrier to taking legal action.”


• On unmeritorious claims, ARAG note that “ATE insurance acts as a significant filter on unmeritorious claims”, with ARAG declining “approximately 2/3rds of all individual quotes”.


• In response to the proposal to increase general damages by 10% to balance out the costs deducted, ARAG cite the 1999 Law Commission report that describes general damages as “already too low”. They therefore back plans for an increase but not at the expense of abolishing recoverability of success fees and ATE premiums.


• Regarding qualified one way cost shifting, ARAG state that it “would create a significant element of uncertainty and the likely prospect of satellite litigation.” Furthermore, ATE insurance would not be “available to protect those risks that would remain by virtue of the qualified rules” and will therefore deter genuine claimants from bringing valid claims and encourage more unmeritorious claims.

Personal Injury Advertising – Consultation Response from the CJA

The consultation period has now closed on the Claims management regulation proposal to amend rule 6(B) of the conduct rules paper, issued by the Ministry of Justice. Following recommendations in Lord Young’s Common Sense, Common Safety report, the consultation paper proposes a change to Rule 6(b) so that inducements of any kind are banned in personal injury advertising. You can read more about this in the Personal Injury Advertising blog.

Lord Young’s report was commissioned by the government to review UK health and safety, as well as the growth of a 'compensation culture'. However, a recent survey conducted by Norton Rose found that this ‘compensation culture’ “does not have the impact that many believe” and is based on perceptions by the public and media.

In response to question one of the consultation paper – do you have any comments on the proposal to prohibit the offering of financial or similar benefits as an inducement for making a claim by amending Client Specific Rule 6(b) of the Conduct of Authorised Persons Rules 2007? – the Consumer Justice Alliance (CJA):

• “Fully supports the prohibition of inducements subject to a corresponding ban on third party capture.”
• Agrees that “any advertising that represents a personal injury compensation award as some kind of lucky prize draw is inappropriate and misleading.”
• “Believe that prohibiting the offering of financial benefits as an inducement for making a claim constitutes the sort of sensible, measured reform that will reduce costs in the current system without dismantling it altogether.

As a member of the CJA, ARAG fully endorses this response. The full response is available to read on CJA website: http://www.consumerjusticealliance.co.uk/index.html.

Will it be a Carroll of joy?

In the January football transfer window, Andy Carroll made the record books as the most expensive Englishman to be signed by an English club. Liverpool FC paid a massive £35million for the 22 year old who at present is out with a thigh injury and unable to play for his new club.

Paying such big money for an injured player, ‘what if’ Carroll was unable to take to field and was forced to retire without even kicking a ball for his side? It must take a brave person to say “pay the £35m because his injury will heal”, but what if it doesn’t? From a purely hypothetical perspective the football club could have a case against the doctor who made the diagnosis. If the doctor had said that the injury would heal and his future play would not be affected and it turned out to be incorrect they could be liable for misdiagnosis. The club could possibly pursue the doctor for the money paid for the player and even wages paid to the player whilst his injury prevented him from playing.

A similar case that demonstrates this type of legal claim is that of former West-Ham player Dean Ashton who was injured during an England training session in 2006. Ashton was unable to fully recover from the injury to his ankle cutting his football career short. Ashton has just received an undisclosed settlement from the Football Association to compensate him for his forced early retirement following advice from the doctor that if he continued to play he may be unable to walk in the future.

According to a recent article in Insurance Times it also looks like West Ham want to get their share and are “set to issue a writ against the Football Association for £10.5m in compensation for retired England international Dean Ashton.”

ARAG’s After-the-Event legal expenses product Recourse is designed for just such incidences. An ARAG policy will pay disbursements, regardless of whether a case is won or lost, providing they are not recoverable from an opponent, and the opponent’s costs should the claim for damages be lost*. Working in conjunction with a full or discounted conditional fee agreement, the cover applies to various legal issues, including personal injury claims and contractual disputes. Find out more about Recourse.

* Subject to the Terms & Conditions of the policy.

Employment Tribunal System Part II

Following from the last blog post on the Employment Tribunal System a consultation paper was released on 27th January which seeks views on a number of proposals which if successfully implemented are intended to address concerns raised by the British Chamber of Commerce by reducing costs and making workplace disputes easier to resolve.

Citing the government’s aim to review employment law in order to make “the UK to be the best place to start and grow a business” the paper set outs a number of proposals that it hopes will “encourage parties to use early dispute resolution”, and if the dispute does go through an employment tribunal to make “cases move more swiftly to conclusion, so as to contain costs for employers, employees and the taxpayer”. (i)

With proposals ranging from “increased awareness of mediation”, to putting forward “legislative proposals to simplify the employment tribunal process” and amending the qualifying period for employees from one year to two before they can bring a claim for unfair dismissal to an employment tribunal, the consultation paper is bound to attract many responses before its April deadline. You can read all of the proposals and background information in the consultation paper online. (ii)

If implemented the proposals could benefit both the employee and employer with improved efficiencies, early resolution and a reduction in cases escalating to employment tribunals. Although there may also be some negative financial implications for unfair dismissal claimants in the form of introducing a fee and for employers in the form of introducing fines if the employer is found to have treated their employee unfairly. Moreover, some proposals could have unforeseen consequences which add costs to the system.

ARAG policyholders will be well-placed to welcome these proposals with 24/7 legal advice, updated downloadable legal documents and the assurance that policy coverage will reflect any future changes to the law.

(i) & (ii): Department for Business, Skills & Innovation and Tribunals Service (2011); Resolving workplace disputes: A consultation January 2011